Kh. Muhammad Nasim, J. Since both the titled appeals with leave of the Court have arisen out of the common judgment of the High Court, hence, the same are being decided through consolidated judgment.
2. The facts forming the background of the instant case are that vide advertisement dated 08.08.2018, various posts were advertised by the University of Poonch, Rawalakot, including one post of Assistant Professor (Plant Pathology) and one post of Assistant Professor (Chemistry), to be filled in on the basis of Tenure Tracking System (TTS). The Condition No. 11 of the advertisement provides that preference will be given to the AJ&K Nationals Besides other candidates, Saira Banaras (Respondent No. 1) applied for appointment against the post of Assistant Professor (Plant Pathology), whereas, Dr. Muhammad Usman Hameed (Respondent No. 2) applied for appointment against the post of Assistant Professor (Chemistry). They filed separate writ petitions before the High Court claiming therein that under Chapter-II, Rule 5 (a) of the University of Azad Jammu and Kashmir Service Statutes, 1981, (hereinafter to be referred as Service Statutes, 1981) no person shall be eligible for appointment to the service of the University by direct recruitment unless he is a Jammu A and Kashmir State Subject Class-I, however, the Selection Board in derogation of the aforesaid statutory provisions recommended Dr. Raees Ahmed against the post of Assistant Professor (Plant Pathology) and Dr. Javed Ali Khan, against the post of Assistant Professor (Chemistry) who are non-State Subjects. They prayed for setting aside the recommendations of the Selection Board and also solicited a direction for their appointments against the posts in question.
3. Both the writ petitions were clubbed together by the learned High Court. After necessary proceedings, the learned High Court through the impugned consolidated judgment dated 21.07.2020, accepted both the writ petitions while directing the appellants-University to consider the respondents, herein, for appointment against the posts of Assistant Professors. Feeling aggrieved from the impugned judgment of the High Court, two appeals, with leave of the Court, have been filed before this Court. Civil Appeal No. 454/2020, has been filed by Dr. Raees Ahmed to the extent of writ petition filed by Respondent No. 1, whereas, Civil Appeal No. 455/2020, has been filed by the appellants-University against the whole impugned judgment.
4. Barrister Humayun Nawaz Khan, Advocate, the learned counsel appearing on behalf of the appellants-University argued the case at some length and submitted that the impugned judgment passed by the High Court is patently illegal. He argued that the impugned judgment is not sustainable for the reason that the same has been delivered after a period of more than two months of hearing the arguments which amounts to judgment without hearing the parties. He further argued that the disputed posts were advertised with the condition that preference will be given to AJ&K nationals which does not mean, that the non-State Subjects were disqualified rather they were equally qualified. It is admitted fact that the respondents miserably failed to challenge the aforesaid condition of the advertisement at any forum. The respondents, herein, applied and participated in test and interview in response to the said advertisement. When they failed to achieve the desired results, they filed the writ petitions in the High Court which, in view of peculiar facts and circumstances of the case, are hit by the principle of acquiescence and estoppel. The learned counsel further argued that the respondents are claiming preference over the non-State Subjects despite the fact that they are far below in merit, whereas, preference can only be given to the State Subjects in case of securing equal marks with State-Subjects. He further added that the appointment against TTS is regulated by the Model Tenure Track Process Statutes, 2008 (hereinafter to be referred as TTS Statutes, 2008) which does not impose any condition for a candidate to be a State Subject. The learned High Court has erroneously relied upon the Service Statutes, 1981 which regulates the appointment against Basic Pay Scale (BPS) and not the TTS. He further added that the appointments against the TTS are purely funded by the Higher Education Commission (HEC) but the respondents have failed to array HEC as party in the writ petitions, hence, the writ petitions are liable to be dismissed on this sole ground. The learned counsel lastly, argued that while accepting this appeal the impugned judgment passed by the High Court be set- aside. In support of his contentions, he referred to the cases reported as Muhammad Maroof vs. Syed AshfaqHussain Shah and others [2017 SCR 1496], Muhammad Ahmed vs. Mad Government and others [PLD 1987 SC(AJ&K) 21], Ghulam Mustafa vs. Mad Govt. and others [1996 SCR 7], Umar Hayat vs. Azad Govt. and others [1999 SCR 243], Abdul Qadir vs. Abdul Karim and others [2000 SCR 97], Razeem Sheikh and others vs. Azad Govt. and others [2010 SCR 264] and Azad Govt. and others us. Mrs. Jamshed Naqvi and others [2014 SCR 13] In the case reported as Muhammad Maroof vs. Syed Ashfaq Hussain Shah and others [2017 SCR 1496] it has been held by this Court that the judgment should be announced in a reasonable time which is prescribed as 3 months.
In the case reported as Sheikh Muhammad Ahmed us. Mad Government and others [PLD 1987 SC(AJ&K) 21] it has been, held that the judgment announced after expiry of a considerable time would be deemed to be a judgment without hearing parties concerned.
In the case reported as Ghulam Mustafa vs. Mad Govt. and others [1996 SCR 7] it has been held that acquiescence of a party in a particular proceeding is always fatal for that party to seek constitutional remedy.
In the case reported as Umar Hayat vs. Mad Govt. and others [1999 SCR 243] it was observed that the principle of acquiescence is applicable if the appellant appeared in examination and filed writ after failing to get appointment but not if he had already filed the writ petition.
In the case reported as Abdul Qadir vs. Abdul Karim and others [2000 SCR 97] it was observed that Acquiescence and estoppel are two recognized grounds in presence of which jurisdiction based on equity cannot be exercised. Writ jurisdiction of the High Court is equitable in nature and no relief is granted to a litigant if he himself is instrumental in the 'making of an order or if he acquiesces in it. He cannot be allowed to turn round and challenge it.
In the case reported as Razeem Sheikh and others vs. Azad Govt. and others [2010 SCR 264], it was observed that when the petitioners have accepted the conditions imposed in the orders that the vacancies will be advertised and permanent induction will be made by the concerned Selection Committee according to selection on merit; they cannot turn round and take a difference stand.
Similarly, in the case reported as Azad Govt. and others vs. Mrs. Jamshed Naqvi and others [2014 SCR 13] respondent herself moved application for contract appointment. After being unsuccessful in obtaining desired results, she filed writ petition. It was held that by her conduct she is estopped from filing the writ petition. The same was liable to be dismissed on the ground of estoppel and acquiescence.
5. Raja Jail Umar, Advocate, the learned counsel for the appellant (Dr. Rams Ahmed), in Appeal No. 254/2020, while adopting the arguments advanced by the learned counsel for the appellants- University, further added that the learned High Court has failed to take into consideration the moot point involved in the case that the appointments under TTS are regulated by the TTS Statutes, 2008, whereas, the appointments under BPS are regulated by the Service Statutes, 1981, hence, the respondents cannot place reliance on Service Statutes for appointment against the posts to be filled under TTS. The Respondent No. 1 (Saira Banaras) also failed to array the necessary party i.e.; HEC in the writ petition, hence; her writ petition was liable to be dismissed.
6. Syed Nazir Hussain Shah Kazmi, Advocate, the learned counsel for Dr. Usman Hameed (Respondent No. 2), in Civil Appeal No. 455/2020, submitted that there is no specific time for announcement of judgment, however, the same should be announced within reasonable time which is prescribed as three months. The impugned judgment has been delivered after a period of two months of hearing of the arguments, hence, the principle of law laid down in the judgments referred to by the learned counsel for the petitioners is not applicable to the case in hand. He further argued that under Rule 5 (a) of Chapter II of Service Statutes, 1981 no person is eligible for the appointment to the services of the University by direct recruitment unless he is a State Subject, Class-I. In this state of affairs, the recommendation of Dr. Javed Ali Khan, who is a non-State Subject was illegal, hence, the learned High Court rightly set-aside the same. He further argued that the merit is determined among the equals which means among State Subjects. In case of non-availability of State Subjects, the other pre-requisite is proper relaxation by the competent authority, whereas, in this case no such relaxation has been obtained. The learned counsel further added that the selection process of the posts of BPS/NPS/TTS; must be carried out 'as per the Service Statutes, 1981, which means every type of appointment in the University must follow the University Statute. The HEC merely financially supports all the Universities irrespective of the fact that the staff is on TTS or BPS. So far as the attraction of the principle of acquiescence and estoppel is concerned, according to the settled principle of law there is no estoppel against law, hence, the learned High Court was justified in accepting the writ petitions. At the end of day, the learned counsel submitted that Respondent No. 2 i.e. Dr. Usman Hameed had challenged the selection process of Dr. Javed Ali Khan, who is a non-State Subject. The said Dr. Javaid Ali Khan has already been adjusted on a permanent post. The said respondent has also not challenged the judgment of the High Court but the appellants-University has challenged the impugned judgment just to deprive Respondent No. 2 of his right. In this state of affairs, the appeal is liable to be dismissed on this sole ground. In support of his contentions, he referred to an unreported judgment of this Court delivered in the case titled "Israr Ahmed vs. Mirpur University of Science and Technology and others" [Civil Appeal No. 53/2015 decided on 11.05.2015], wherein, it has been held that merit will be determined among the equals which means among the state-subjects. In case of non-availability of state subject the other pre-requisite condition is a proper relaxation order of the competent authority.
7. Sardar Abdul Rauf Khan, Advocate, the learned counsel representing Respondent No. 1 adopted the arguments advanced by the learned counsel for Respondent No. 2 and prayed for dismissal of both the appeals.
8. We have heard the learned counsel for the parties and examined the record made available.
According to the stated facts, vide advertisement dated 08.08.2018 one post of Assistant Professor (Plant Pathology) and one post of Assistant Professor (Chemistry) were advertised by the University of Poonch. The advertisement contained a specific condition that "preference will be given to the AJ&K nationals". In response to the advertisement, Respondent No. 1 applied for appointment against the post of Assistant Professor (Plant Pathology), whereas, Respondent No. 2 applied for appointment against the post of Assistant Professor (Chemistry). According to the merit list for the post of Assistant Professor (Plant Pathology), Respondent No. 1 secured 58.49 marks, whereas, Dr. Raees Ahmed (appellant) secured 66.29 marks. Likewise, according to the merit list for the post of Assistant Professor (Chemistry), Dr. Javed Ali Khan, secured 71.92 marks, whereas, Respondent No. 2 (Dr. Usman Hameed) secured 62.97 marks. Both the merit lists show that only Respondents Nos. 1 and 2 are' the State Subjects, whereas, all the other candidates are non-State Subjects. The concerned selection Board recommended Dr. Raees Ahmed and Dr. Javed Ali Khan (both non- State Subject) for appointment against the advertised posts. Feeling aggrieved, Respondents No. 1 and 2 challenged the aforesaid recommendations by filing the separate writ petitions before the High Court on the ground that both the recommended candidates are non-State Subjects, hence, according to the Service Statutes, 1981 their appointments cannot be made. The learned High Court, after necessary proceedings, through the impugned consolidated judgment accepted both the writ petitions and directed 'the appellants-University to consider the petitioners (therein) for appointment against the posts of Assistant Professor' TTS.
9. First of all, we would like to take up the argument advanced by the learned counsel for the appellants-University that the impugned judgment has been announced after a period of more than two months of hearing the arguments, hence, it amounts to judgment without hearing the parties. Although, no specific period is fixed for announcement of the judgment in the Azad Jammu and Kashmir High Court Procedure Rules, 1984, but as the Civil Procedure Code is applicable to the writ proceedings, therefore, it has been opined by the apex Court of AJ&K in the case reported as Muhammad Maroof vs: Syed Ashfaq Hussain Shah and others [2017 SCR 1496] while relying upon the judgment of the Supreme Court of Pakistan reported as Messrs MFMI Industries Limited and others vs. Federation of Pakistan and others [2015 SCMR 1550] that the judgment should be announced in a reasonable time. In the said case, the reasonable time has been prescribed as three months. In the instant case, the arguments were heard on 18.05.2020 and the judgment was announced on 21.07.2020. This way, the judgment has been announced after a period of two months and three days, hence, the argument advanced by the learned counsel for the appellants is hereby repelled.
10. The nucleus point requiring resolution in this case is whether the non-State Subjects (i.e., Dr. Javed Ali Khan and Dr. Raees Ahmed) could have been appointed against the posts of TTS in presence of State Subjects. A perusal of the record shows that in the advertisement a specific condition was imposed that the preference will be given to State Subjects meaning thereby that the non-state subjects can also apply against the posts in question. We will have to firstly resolve whether the impugned advertisement has been issued under Service Statutes, 1981 or under the TTS Statues. Since 2008, the Universities which have adopted the TTS Statutes make appointments of their teaching staff against TTS or BPS. The TTS is one of the initiatives taken by the HEC to improve the performance of public sector Universities and it is purely funded by the HEC. Whilst, BPS are the government pay scales, which are uniformed throughout, the State. The appointments against the BPS in the University of AJ&K are regulated by the Service Statutes, 1981, whereas, the appointments against TTS are regulated by the TTS Statutes, 2008. The perusal of TTS Statutes shows that it does not prescribe any specific mode of filling in the posts like advertisement, selection process etc. The selection process is conducted by the University and not by the HEC.
Under clause 1.1 (e) of the TTS Statutes, 2008 (version 2.0, June 1, 2008) once, a University has adopted the TTS of appointment, no further appointment of Ph.D degree holders may be made as Assistant Professors under the old (BPS) system and such faculty members must be recruited under the TTS system. In the instant case, a cursory examination of Column No. 2 of Serial Nos.4 and 5 of the advertisement, makes it dystal clear that the appointments against the posts of Assistant Professors were meant to be made under TTS and the posts of Lecturers were required to be filled in under BPS system. Moreover, the Column No. 4 of Serial No. 4 provides that for TTS appointments, HEC criteria will be followed, whereas, there is no such condition for the posts of Lecturers.
11. Leaving aside the fact of applicability of Service Statutes, 1981 or TTS Statutes, 2008 the record shows that the advertisements were issued with a specific condition that the preference will be given to the State Subjects. The respondents never challenged the referred condition rather participated in test and interview conducted by the Selection Board. When they were not recommended by the Selection Board, they filed a writ petition with the stance that the condition imposed in the advertisement must be followed in their respective cases. In this state of affairs, the principle of acquiescence and estoppel is fully attracted and the learned High Court erred while holding that the principle of acquiescence and estoppel is not attracted in this case. Reliance in this regard is placed on the case reported as Engineer Muhammad Khalid vs. The University of AJ&K and others [2004 SCR 467] it has been held by this Court that: "12 The objection raised on behalf of the respondents is also weighty that the petitioner participated in the test and interview conducted by the Selection Board. He failed to raise any objection about the presence of Sardar Muhammad Altaf Khan as an expert, therefore at this belated stage on the principle of acquiescence he cannot be allowed to challenge his presence as a member of the Selection Board. The reliance was rightly placed upon the cases reported as Umar Hayat vs. Azad Gout, and others [1999 SCR 243], Suleman Ahmed vs. Tanveer Ahmed Mir [2001 SCR 282] and Abdul Qadir vs. Abdul Karim [2000 SCR 97], wherein it is laid down that if at the relevant time, objection about the jurisdictional competence of any forum is not raised, on failure to achieve the goal, a person cannot be allowed to turn volte-face and challenge the constitution of such forum.
The writ jurisdiction is a discretionary jurisdiction. Only a person coming with clean hands can seek equitable relief by invoking this jurisdiction of the High Court."
Similarly, in the case reported as Ehsan-ur-Rehman vs. Arsand Ali Khan [PLJ 2012 SC(AJ&K) 64] it has been held that:- "13 Another argument of the learned counsel for the appellants that after participating in the test and interview the petitioners have acquiesced, and they are estopped by their conduct to challenge the proceedings of the Selection Committee by way of writ petitions is worth consideration. Both the petitioners qualified the typing test and after qualifying the same, they participated in the written test and also appeared in the interview. They could not attain the required merit position and were put in lower position. Appellants Nos. 1 and 4 were at Nos. 1 and 2 in the merit list prepared for District Muzaffarabad. They were duly appointed. After participating in the test and interview the petitioners have acquiesced and by their conduct they are estopped from, challenging the proceedings of Selection Committee. The matter of acquiescence and estoppel has since long been settled by this Court in different cases. It has been held by this Court in a number of cases that if a person participates in the proceedings and remains unsuccessful in getting the desired result, later on he cannot turn round and challenge the proceedings on the ground that the same were not conducted by the legally constituted body. In a case titled Malik Khalid Mahmood vs. Abdul Majid Butt and 4 others [1998 SCR 38] it was held as under: "6. It was then argued by Raja Hassan Akhtar that when the allotment order in favour of Respondent No. 1 was issued the relevant rules authorizing the allotment of plot had not yet been enforced This point was argued before the High Court and was repelled by placing reliance on a notification issued on 25th of February 1988 whereby rules applicable to Mirpur Development Authority in respect of encroachments of land were made applicable to Municipal Committee Dadyal. The learned counsel for the appellant submitted before us that the view taken by the High Court was not correct. We need not decide this question because it is well settled that the appellant is estopped from raising this point. Admittedly the appellant himself applied on the prescribed form to the Municipal Committee that his possession over the disputed piece of land may be regularized in his favour. After having been unsuccessful in his attempt to secure a favourable order he cannot be allowed to turn round to say that the functionaries of the Municipal Committee did not have the authority to regularize encroachments."
In another case reported as Abdul Qadir vs. Abdul Karim and 4 others [2000 SCR 97] while dealing with the proposition of acquiescence and estoppel it was observed as under: "..........We may add that acquiescence and estoppel are two recognized grounds in presence of which jurisdiction based on equity cannot be exercised in favour of a litigant. A common example may be found in the writ jurisdiction of the High Court which is equitable in nature and no relief is granted to a litigant if he himself is instrumental in the Making of an order or if he acquiesces in it.
He is not allowed to turn round and challenge it. Equitable jurisdiction cannot also be exercised in favour of a litigant with objectionable conduct.
In another case titled Sardar Zaheer Ahmed Khan and another vs. Azad Government and 4 others [2005 SCR 89] it was observed as under: "A perusal of the judgment of the High Court as well as the report of the Commission reveals that the petitioners have participated and duly assisted the Commission of Inquiry and they have all along been with the Commission during inquiry. They have challenged the notification of appointment of Commission of Inquiry after the report was submitted by the Commission and when they found it against them. A person who duly participated in an inquiry and acquiesced to the jurisdiction, is estopped from calling in question the proceedings and the results thereof."
In the instant case after participating in the interview, the writ petitioners could not attain required merit position. They have acquiesced and are estopped from challenging the proceedings of Selection Committee. The writ petitions were liable to be dismissed on this ground."
12. It has been held by the learned High Court in the impugned judgment that in presence of eligible State Subjects possessing the requisite qualification a non-State Subject cannot be considered for making appointment. We are not agreed with the observations of the learned High Court for the reason that imposition of condition that preference will be given to the state subjects does not mean that the non-State Subjects have been disqualified for mere the fact of their being non-State Subjects rather they are equally qualified. A perusal of the merit lists reveals that the respondents are far below in the merit as compared to the recommended candidates. No doubt, the State Subjects are entitled to be given preference but this condition will come into operation only when the marks obtained by a State Subject and non-State Subject are equal. The view expressed in the judgment delivered in the case titled Israr Ahmed vs. Mirpur University of Science and Technology and others [Civil Appeal No. 53/2015 decided on 11.05.2015], referred to by learned counsel for Respondent No. 2, is not applicable to the case in hand being having distinguishable facts.
13. In view of the aforesaid discussion, we are of the view that the respondents failed to challenge the condition laid down in the advertisements at any forum and participated in selection process conducted by the Selection Board in response to the advertisement dated 08.08.2018, thus, they were not justified to challenge the recommendations of the Selection Board after having failed to achieve the merit position. Therefore, the impugned judgment of the High Court is not maintainable and liable to be set-aside.
14. Before parting with the judgment, we deem it appropriate to observe here that according to the statement of learned counsel for Respondent No. 2, the recommended candidate i.e., Dr. Javed Ali Khan, has already been adjusted by appointment to a permanent post, hence, according to the merit list now Respondent No. 2 figures at Serial No. 1 and is entitled to be appointed. In this state of affairs, the appellants-University is at liberty to consider Respondent No. 2 (Dr. Usman Hameed) for appointment in accordance with the merit position.
For the foregoing reasons, we accept these appeals and set aside the impugned judgment of the High Court dated 21.07.2020. The writ petitions filed by the private respondents, herein, are hereby dismissed with no order as to costs.