1. SYED SHAHID BAHAR, J.---By way of instant constitutional petition under Article 44 of the Interim Constitution, 1974, the petitioner has beseeched the following relief:- "In view of above mentioned facts and circumstances, it is, therefore, very humbly prayed on behalf of the petitioner to issue an appropriate writ in the following manner:- i. That the impugned appointment notification of private respondents bearing No.SZ 20(1)24/2280- 88/2021 and SZ 20(1)24/2289-97/2021 dated 30.04.2021 may kindly be declared illegal, void, without lawful authority, coram-non-judice, ultra-vires to the constitutional norms and the same may kindly be struck-down. ii. It is further prayed that the official respondents be directed to issue the appointment notification of the petitioner on one of the ibid advertised posts as an eligible candidate on top of the merit list having the requisite experience against the post of Monitoring and Evolution Officer or Water Management Officer B-17. iii. Any other relief which deemed to be fit may also be granted in favour of petitioner."
2. BRIEF FACTS: - Facts of the case succinctly required for disposal of the case in hand are that the petitioner in response of public advertisement applied against the post of Water Management Officer B-17 and Monitoring and Evaluation Officer BPS-17, requisite proceedings were carried out resultantly test and interview was conducted/concluded by way of appointments of respondents Nos.5 and 6 respectively vide notification bearing No SZ 20(1)24/2280-88/2021 and SZ 20(1)24/2289-97/2021 dated 30.04.2021 (impugned herein).
3. Main grievance voiced by the petitioner is against the aforesaid notifications regarding appointments of the respondents Nos.5 and 6. The petitioner pleaded 6 grounds of attack to the, legality of the aforesaid notifications (impugned herein) and overall trend of all the grounds particularly, ground-D are composite common and amalgamated, crux of the same, ex-facie reveals that appointments of the private-respondents are politically motivated and outcome of connivance of official quarters and lack of requisite qualification of the respondents Nos.5 and 6.
4. Both the learned counsel for the parties submitted their written arguments pro and contra, record of the case has minutely been perused.
5. PETITIONER'S SUBMISSIONS: - The learned counsel for the petitioner, Mr. Syed Zulqarnain Raza Naqvi, Advocate vehemently contended that the notification of appointments of respondents Nos.5 and 6 (impugned herein) are outcome of connivance of official respondents with the petitioner, which as per his estimation is sheer violation of law, thus, the notification under challenge is void ab-initio. He further added that the aforesaid notification has been issued on political motivation. The learned counsel in parlance of the alleged grievance narrated that the official respondents are under legal obligation to act in accordance with law, he added that the basic qualification was determined by the respondents as B.Sc. Honors Agriculture/ Master's degree (Soil Sciences) with 3 years' experience, whereas the private respondents at the eve of selection were lacking the requisite qualification.
6. SUBMISSION TENDERED BY PRIVATE RESPONDENT No.5: - While in response, the learned counsel for respondent No.5, Mr. Saghir Javed Advocate filed written arguments, wherein he tenaciously opposed the writ petition and maintained that all the proceedings have been initiated and concluded by the official respondents completely in accordance with law and no illegality has been committed in this regard. He further maintained that the petitioner has got no locus standi to file the instant petition at the eve of applying against the post, he submitted a fake experience certificate, which is reflecting from the record appended with the written statement, wherein the relevant department has categorically denied issuance of certificate of experience tendered by the petitioner before Selection Authority, hence, the writ petition merits dismissal.
7. SUBMISSIONS OFFERED BY PRIVATE RESPONDENT NO. 6: - Mr. Waheed Bashir Awan, the learned counsel for private respondent No.6 also filed written arguments wherein he contended that the appointment of said respondent has been made by selection board on contractual post. He further contended that the writ petition has been filed by the petitioner with mala fide intention after failure in selection process. He further added that the petitioner has got no locus-standi to challenge such process, in which he participated; hence, rule of acquiescence is fully attracted in the matter.
8. OFFICIAL RESPONDENTS' SUBMISSIONS: - The learned counsel for official-respondents Syed Wasif Ali Gardezi, staunchly contended and submitted (through written arguments) that in fact the posts in question were advertised in "National Programme for improvement of Water Channel/Water Courses Phase-II Azad Jammu and Kashmir Component" and the aforesaid project was sanctioned on 29.08.2019. He further added that for the post of Water Management Officer B-17, (seventy) 70 applications were received by the department, wherein, name of the petitioner figured at serial No.19 while for the post of Monitoring and Evaluation Officer B-17, total 87 applications have been submitted, for which, the name of the petitioner appeared at serial No.22, resultantly, on the direction of the Selection Board No.3, a Committee was constituted for the purpose and the aforesaid Committee conducted written test of the candidates and submitted the matter to the Selection Board No.3. The learned counsel for official respondents further submitted that as the nature of the appointments in the project is totally contractual and the appointments to the posts carrying grade 16 to 18 were likely to be made by Selection Board No.3 as per policy notification dated 23.04.2021. The learned counsel for official respondents further maintained that in light of the overall received applications, after shortlisting for the post of Water Management Officer, only Eight (8) candidates have been short listed, while for the post of Monitoring and Evaluation Officer (B-17), Nine (9) candidates were short listed, whereas rest of the candidates could not qualify according to requisite criteria. He further added that for the post of Water Management Officer (B-17) the name of the petitioner figures at serial No.2 while against the post of Monitoring and Evaluation Officer (B-17) his name is at serial No.1. He apprised the court that due to lock down of covid-19 pandemic, the written test of the candidates was delayed for some days and ultimately, the interview for the aforesaid post was conducted by the competent authority (selection board) and the selection board, after taking into consideration the merits, experience and other credentials recommended the private respondents, herein, for appointment in accordance with law. The learned counsel for official respondents apprised the court, that the petitioner has tendered a fake certificate of experience before Selection Board on 01.06.2021 for the post in question, for which he was claiming his right while the office of Director General Agriculture categorically denied issuance of such like certificate in favour of the petitioner. The learned counsel vehemently contended that as the petitioner himself appeared before the Selection Board and could not come up to the mark, therefore, he is estopped by his own conduct to challenge the selection process. Vertical precedents in this regard relied by the learned counsel are:- a. Abdul Qadir v. Abdul Karim 1999 PLC (C.S.) 947. b. Najma Parveen v. Samar Ayub 2016 SCR 15. c. Salman Ahmed v. Tanveer Ahmed 2002 PLC (C.S.) 714.
9. After going through the written arguments offered by both the parties and perusing the record appended with writ petition and submitted by the department, it is pertinent to reproduce hereunder the merit list/result sheet for both positions, i.e. After perusal of the above result sheets, it is oozing and reflecting that the petitioner for the post of "Water Management Officer B-17" obtained 68.77 marks while the private respondent Raja Waqar Ahmed Azad obtained 84.99 marks, whereas against the post of Monitoring and Evaluation Officer B-17, the petitioner obtained 47.27 marks while successful candidate, respondent No.6-Iram Naqvi got 78.69, much more than that of the petitioner.
10. It is an admitted position that petitioner applied against both the posts in question and his name was included in the short-listed candidates, thereafter he participated in the selection process actively but could not succeeded. It has also been brought on record by the respondents that the petitioner has tendered fake certificate of his experience. It is useful to reproduce the same as under: - OFFICE OF THE DIRCTOR GENERAL AGRICULTURE DEPAREMENT OF AGRICULTURE Azad Govt. of the State of Jammu and Kashmir MUZAFFARABAD Phone No:05822-920563 Ref. No. 1845 Date: 07.06.2021.
11. To Whom It May Concern It is to certify that Mr. Naveed Nazir son of Muhammad Nazir Khan, R/o Hussain-Kot, Tehsil Rawalakot, District Poonch Azad Jammu and Kashmir had been serving in this department as an Agriculture Officer Extension/ Assistant Research Officer Crops (B-17) on Ad hoc basis since 1st December, 2007 to 18th January, 2021.
12. He performed meritorious services under my supervision. He proved himself as a responsible, keen to learn and an individual who completed his assignments well in time His work and conduct remained quite satisfactory and I wish him success in all walks of life.
13. Signature Director General Agriculture AJK Muzaffarabad The aforementioned experience certificate has been declared fake and bogus by the office of Directorate of Agriculture vide letter dated 28.01.2021, and the same has also been placed before the court along with written arguments on behalf of official respondents as . It is relevant to reproduce the same as under:- The above reproduced letter clearly reveals that the petitioner's experience certificate on which he is heavily relying was found fake and fabricated attributed to issuing department.
14. DETERMINATION BY THE COURT: - The petitioner participated in the selection process and could not get the merit position, hence turned around and filed this writ petition. It is settled principle of law when a person actively participates in the selection process subsequently, he cannot come up with volta face and challenge the selection process at random by criticizing the mode of selection or questioning the bona fides of the selection authority. While exercising extra-ordinary jurisdiction, the conduct of the petitioner is also to be filtered through the lens of bona fide, which is to be judged by the court in light of the conduct of the petitioner and overall circumstances of the case. In my estimation the doctrine of acquiescence and estoppel are fully attracted into the matter. Moreover, this Court cannot substitute the findings of the selection authority (based upon wisdom) without indication of any arbitrariness and illegality. Reliance in this regard is, placed on the following dicta laid down by the Honorable Supreme Court of Pakistan, in a case reported as 2008 SCMR 960, titled Dr. Mir Alam Jan v. Dr. Muhammad Shahzad and others, wherein it has been ordained: - "----Art. 199---Constitutional jurisdiction of High Court--- Scope---Civil service---Appointment-- -High Court, in exercise of the constitutional jurisdiction under Art. 199 of the constitution was not expected to perform the functions of a selection Authority in service matters so as to substitute its opinion for that of competent authority."
15. Same view has been taken in the following case law as well i.e. 2007 SCMR 682, titled Muhammad Iqbal v. Executive District Officer.
16. Petitioner has failed to make out any point for interference by this Court in its extra-ordinary jurisdiction, as he miserably failed to point out any illegality on the part of official-respondents, that too, although he has taken a ground of mala fide and political connivance but in support of this specific allegation, the petitioner has failed to bring on record any sufficient and cogent evidence for consideration of this Court. The term "Mala fide" has been interpreted by the Honorable Apex Court of Pakistan in a case reported as "The Federation of Pakistan through the Secretary, Establishment Division, Government of Pakistan Rawalpindi v. Saeed Ahmed Khan and others"
17. [PLD 1974 SC 151] in the following terms i.e. "Mala fide is one of the most difficult things to prove and the onus is entirely upon the person alleging mala fides to establish it, because there is, to start with, a presumption of regularity with regard to all the official acts, and until that presumption is rebutted, the action cannot be challenged merely upon a vague allegation of mala fides.
18. The Honorable apex Court of Pakistan in a case titled Dr. Akhtar Hussain Khan and others v.
19. Federation of Pakistan and others reported as 2012 SCMR 455 has reiterated and fortified the stance of "mala fide" which the Apex Court took in Saeed Ahmad Khan's case [PLD 1974 SC 151].
20. Therefore, this court is not inclined to interfere in such like matter, stale and bald allegation quo attributing mala fide to other party without proving the same serves no purpose.
21. The crux of above discussion is that finding no substance in this writ petition, the same is hereby dismissed in limine. No order as to costs.