Kh. Muhammad Nasim, J. The above titled appeal by leave of the Court, has arisen out of the judgment of the High Court, dated 22.03.2018, whereby the writ petition filed by the appellant, herein, has been dismissed.
2. The facts of the case briefly stated are that the appellant, herein, filed a writ petition in the High Court, alleging therein, that the University of Management Sciences & Information Technology, Kotli, issued an advertisement in a newspaper "Daily Nawa-e-Warit", on 28.6.2015, whereby the applications for appointment against different posts including two posts of Assistant Professor in the subject of Computer Science/Information Technology (B-19) and one post of Lecturer, Information Technology (13-18), were invited. The eligibility criteria laid down for the post of Assistant Professor (B-19) was Ph.D. from any HEC recognized University in the relevant field or Master Degree (Foreign) or M.Phil (Pakistan) in the relevant field from HEC recognized University with 4 years' teaching/research experience in a recognized University or a postgraduate institution or professional experience in the relevant field in a National or International Organization. In pursuance to the advertisement, the private respondents submitted applications for the posts of Assistant Professor (B-19) and the appellant, herein, moved applications for the post of Assistant Professor (B-19), as well as the post of Lecturer (B-18). The appellant submitted certain documents along with the applications with a view that the curriculum for M.S. Information Technology and that of the M.S. Computer Science are quite different and both are distinct disciplines having no nexus with each other. It was averred that apart from having relevant qualification for appointment to the post of Assistant Professor, Information Technology, the appellant has also completed the course of study of Ph.D. Program in Information Technology and thesis of the program is in progress. It was further averred that Respondent No. 5, herein, is holding the degree of B.Sc. from AJ&K University and does not hold any M.S. degree in the relevant discipline of Information Technology, rather she has produced provisional certificate of M.S. Computer Sciences. The curriculum for M.S. Computer Science is quite distinct than the curriculum of M.S. Information Technology. It was further averred that Respondent No. 6, herein, has also the qualification of B.Sc.
Computer Science from the Hajveri University, who also produced the degree of Master of Sciences (60 credits, main field of study in IT management) from a foreign University, the equivalence of which, granted by the Higher Education Commission, is only for one year and the total educational period is 17 years. The degree produced by Respondent No. 6 is also not relevant with the field of information technology. It was averred that the candidates, who applied for the post of Assistant Professor, Computer Science, were interviewed separately, and those who applied for appointment against the post of Assistant Professor/Lecturer (Information Technology) were interviewed separately. After the test and interview, private respondents were appointed against the posts of Assistant Professor (B-19). The appellant challenged the validity of the appointment notification of the private respondents, herein, before the High Court by way of writ petition on 27.6.2016. The learned High Court vide its judgment dated 14.04.2017, dismissed the writ petition. Feeling aggrieved from the judgment of the High Court dated 14.04.2017, the appellant filed an appeal before this Court. This Court vide its judgment dated 29.01.2018, accepted the appeal, set aside the judgment of the High Court dated 14.04.2017 and remanded the case to the High Court while formulating certain points. The learned High Court after necessary proceedings, dismissed the writ petition through the impugned judgment dated 22.03.2018, hence this appeal by leave of the Court.
3. Raja Muhammad Hanif Khan, the learned Advocate representing the appellant submitted that the impugned judgment passed by the learned High Court is against law and the record of the case which is not sustainable in the eye of law. He forcefully argued that in the previous round of litigation, this Court remanded the matter to the High Court for resolution of the points formulated by this Court but the same have not been decided according to letter and spirit, rather deviation has been made in the impugned judgment which amounts to non-resolution of the points formulated by this Court. He further contended that the observation made by the leaned High Court that the Information Technology is a main discipline under whose domain the subject of Computer Science falls, is against law and the record. The learned High Court failed to differentiate the terms "Information Technology" and "Computer Science". Both are independent fields and have no nexus with each other. In this regard, he referred to the advertisement and the minutes of the meeting of the selection board, while submitting that two posts of Assistant Professor (B-19) were advertised; one for the Information Technology and the other for the field of Computer Science, as is apparent from the proceedings which were conducted separately. He added that in spite of this fact that the appellant was found one of the eligible candidates for appointment against the post of Assistant Professor (B-19), the official respondents made the appointment of the private respondents, in a pre-planned manner. In continuation of his arguments, he submitted that the private respondents have been extended retrospective benefit w.e.f. 17.10.2015, the date of recommendations of the Selection Board, which shows mala fide on the part of the authority. He further submitted that this version is further supported by the fact that in case of appointment of other candidates, no such effect has been given, which shows clear discrimination. The same principle was not adopted in the case of the appellant. The learned Advocate, alleged that the private respondents were not eligible for appointment against the posts of Assistant Professor (B- 19) on the ground of lacking the required qualification mentioned in the advertisement as well as in the Rules. He emphasized that Respondent No. 6, holds a Foreign Master Degree and has produced an equivalence certificate, which has not been issued in accordance with Rules. The learned High Court failed to consider all these legal aspects of the case and illegally dismissed the writ petition.
The learned High Court also erred in law while holding that the appellant cannot challenge the proceedings of the Selection Board for the reason that he himself participated in the selection process for the post of Assistant Professor Information Technology (B-19) and for the post of Lecturer, Information Technology (B-18). The reasoning assigned by the learned High Court is not supported by law as mere participation in the selection process and the appointment made in grade (B-18), do not debar the appellant from challenging the selection process conducted for the post of Assistant Professor (B-19). In support of Ms submissions, the learned Advocate, referred to and relied upon the cases reported as [2008 SCR 230], 2016 SCR 1253] and [2018 SCR 933]. He prayed for acceptance of appeal.
4. On the other hand, Sardar Pervaiz Akhtar, the learned Advocate, representing the University Authorities, submitted that the judgment passed by the learned High Court is perfectly legal, calling for no interference by this Court. He added that the principle of acquiescence is fully applicable in the case in hand, as the appellant participated in the selection process and on the recommendations of the same Selection Board, he was appointed as Lecturer (B-18) and in pursuance of the appointment notification he joined the service, thus, it was not open for him to challenge the findings of the Selection Board in respect of the other posts. The learned High Court has committed no illegality while dismissing the writ petition.
5. Barrister Humayun Nawaz Khan, the learned Advocate, representing Respondent No. 5, submitted that Respondent No. 5, was duly qualified for appointment against the post in dispute and after conducting the selection process and taking into account the credentials of the respondent in the light of advertisement, she was righty recommended by the Selection Board, and the same were approved by the Syndicate. In this regard, the learned counsel referred to different documents. He further submitted that no mala fide can be attributed to the Selection Board, which is the sole authority to determine the suitability of the candidates. The case of the appellant was also taken into account and he was found eligible to be appointed against the post of Lecturer (B-18). Now the appellant is de-barred from challenging the selection process. The appellant has failed to point out any illegality or infirmity in the impugned judgment.
6. Sardar M. R. Khan, the learned Advocate representing Respondent No. 6, raised a preliminary objection on the maintainability of the writ petition while submitting that the appellant, herein, challenged the appointment notification of the private respondents, issued by the University of Management Sciences & Information Technology Kotli, but while filing the writ petition the said University has not been arrayed as party, hence the writ petition filed by the appellant, herein, was liable to be dismissed on the sole ground. On merits, while supporting the judgment passed by the learned High Court, he submitted that Respondent No. 6 was duly qualified for the post against which he was appointed whereas the appellant does not fulfil the requisite qualification. He added that the respondent is Master in Science (Information Technology)/M.S.I.T., which is the required qualification for appointment against the disputed post. He submitted that both the disciplines; Computer Science as well as the Information Technology, are interlinked with each other, as it is a vast field and one is the offshoot of the other. The learned counsel further submitted that Respondent No. 6 is holding the degree of M.S.I.T., which is recognized by the Higher Education Commission. The appellant appeared in the test and interview before the Selection Board and after failing to obtain the desirous merit, he cannot be allowed to turn volta-face and challenge the proceedings conducted by the Selection Board. The learned Advocate stated that the writ petition filed by the appellant has rightly been dismissed by the learned High Court and prayed for dismissal of appeal.
7. In reply to the preliminary objection raised by the counsel for Respondent No. 6, Raja Muhammad Hanif Khan, the learned Advocate, representing the appellant, submitted that the objection with regard to non-impleadment of University of Management Sciences & information Technology Kotli was not raised before the High Court as such the objection not raised in the High Court could not be allowed to have been raised before this Court during the arguments.
8. We have heard the learned Advocates, representing the parties and gone through the record of the case along with the impugned judgment. It is revealed from the record that the University of Management Sciences & Information Technology, Kotli, issued an advertisement in a newspaper "Daily Nawa-e-Waqt", on 28.6.2015, whereby the applications for appointment against different posts including two posts of Assistant Professor (B-19) in Computer Science/ Information Technology and one post of Lecturer, Information Technology (B-18), were invited. In pursuance to the said advertisement, the private respondents submitted applications for the post of Assistant Professor (B-19) and the appellant, herein, moved applications for the post of Assistant Professor (B-19), as well as for the post of Lecturer (B-18). After the test and interview, private respondents were appointed against the posts of Assistant Professor (B-19), whereas the appellant herein, was appointed against the post of Lecturer (B-18). The appellant challenged the validity of the appointment notification of the private respondents, herein, before the High Court by way of writ petition. The learned High Court in the earlier round of litigation, dismissed the writ petition in limine, vide its judgment 14.4.2017, however, on appeal filed before this Court, the case was remanded to the High Court for decision of the matter afresh while formulating certain points. The learned High Court after necessary proceedings dismissed the writ petition through the impugned judgment.
9. The main contention of the learned Advocate, representing the appellant is that the learned High Court has not resolved the points formulated by this Court in a legal manner. After perusal of the record as well as the impugned judgment we are not convinced with this argument, as the learned High Court after detailed discussion on the points formulated by this Court, answered the same in a legal manner. The appellant has annexed with the memo of appeal the advertisement dated 28.07.2015, whereby the University of Management Sciences and Information Technology Kotli, amongst others advertised two posts of Assistant Professor (B-19) in the subject of Computer Science/Information Technology. The appellant has not challenged the said advertisement, instead while accepting the terms and conditions of the said advertisement, he applied against the post and also participated in the selection process. The qualification for the said posts was fixed as Ph.D from HEC recognized University/ Institution in the relevant field or Master Degree (Foreign) or M. Phil. (Pakistan) in the relevant field from HEC recognized University/ Institution, having four years teaching/research experience in a recognized University or a postgraduate Institution or professional experience in the relevant field in a National or International Organization.
It is transpired from the academic credentials appended with the record that the private respondents fulfilled the required qualification against the posts of Assistant Professor Computer Science/Information Technology. The equivalence certificate furnished by private Respondent No. 6, herein, has also been issued by the Higher Education Commission, hence the validity of the same cannot be questioned. In this state of affairs, it has been established that the private respondents are qualified and the Selection Board has rightly recommended them against the posts of Assistant Professor (B-19) and the same were approved by the Syndicate, hence the argument of the learned Advocate, for the appellant regarding the lacking of qualification of private respondents against the posts in question, has no force.
10. So far as the common argument of the learned Advocates representing the respondents that the writ petition filed by the petitioner/appellant, herein, was not maintainable on the ground of acquiescence and estopple, is concerned, we are of the view that this submission has substance in it. It is revealed from the record that in response to the advertisement dated 28.06.2015, the appellant applied and participated in the test and interview conducted by the Selection Board against the posts of Assistant Professor in the subject of Computer Science/Information Technology BPS-19 and Lecturer BPS-18. He was recommended for appointment against the post of Lecturer BPS-18 and the notification of appointment was also issued. In pursuance thereof, the appellant joined the same and thereafter, he challenged the appointments of the private respondents as Assistant Professors Computer Science/Information Technology BPS-19, on the ground that the selection process was not conducted in a fair and transparent manner and the respondents were not duly qualified for the posts they have been appointed. Thus, the appellant is barred by his conduct to challenge the process of selection when he could not achieve the desired result by participating in the selection process against the posts of Assistant Professor BPS-19. We are fortified in our view from the case reported as Abdul Qadir vs. Abdul Karim and 4 others [2000 SCR 97], wherein, this Court observed as under: ".... We may add that acquiescence and estoppels 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 reported as Engineer Muhammad Khalid vs. University of AJ&K & 8 others [2004 SCR 467], this Court observed in para 10 as under: "10. 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 Govt. 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 Fatima Bibi vs. Najma Parveen and 15 others [2016 SCR 15], this Court in para 7 observed as under: "7. The High Court has dismissed the writ petition on the ground that the appellant applied for the post, participated in the test and interview but could not qualify the same. After failing, he has challenged the process of selection. He has acquiesced and estopped by conduct from challenging the process of selection. There is no illegality in the judgment of the High Court. The writ petition was liable to be dismissed on the sole ground.
11. There is another important aspect of the case that the appointment notification of Respondents No. 5 and 6, herein, was issued by the University of Management Sciences & Information Technology Kotli, but the appellant has not impleaded the University of Management Sciences and Information Technology Kotli, as party in the writ petition. It is a settled principle of law that the authority which has issued the order is a necessary party in the proceedings. The writ petition is held not competent in the circumstances when necessary party is not arrayed as a party. It is transpired that Vice Chancellor University, Registrar University, Senate University of Management Sciences & Information Technology and Selection Board have been impleaded as party in the line of the respondents but the University of Management Sciences & Information Technology Kotli has not been impleaded as party in the line of the respondents which was a necessary party. We are fortified in our view from the case reported as Muhammad Reshim Khan vs. Chairman Inspection Team & 3 others [PLJ 1990 SC (AJ&K) wherein it was held 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 Bibi, (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 5 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."
The identical view was taken by this Court in the case reported as Kh. Ghulam Qadir & 5 others vs. Divisional Forest-Officer Demarcation and 3 others [1996 SCR 161], whereby it was observed in para 6 as under: "6. We have also noticed that the appellants before the High Court did not array Board of Revenue as one of the respondents. Member Board of Revenue was however, arrayed as one of the respondents in the writ petition. In our view the writ petition filed before the High Court by the appellants was not competent on account of non-joinder of necessary parties. Our aforesaid view is fortified by case reported as Muhammad Ashraf v. Azad Government of the State of Jammu and Kashmir [PLD 1985 SC (AJ&K) 102] and an un reported case of this Court titled Syed Muhammad Akram Shah v. Chairman Allotment Committee (Civil Appeal No. 7 of 1995 decided on 24-07-1995). In the latter referred case it was observed that the Allotment Committee had the powers to make allotments under the relevant law, the same was a legal person within the meaning of Section 44 of the Azad Jammu and Kashmir Interim-Constitution Act, 1974. It was observed that as the Committee was not impleaded as a party the writ petition was incompetent and was dismissed, despite the fact that no objection was raised in that regard, from the opposite side. It was also observed that such an objection can be gone into by the Court suo motu without any objection from the opposite party.
In another case reported as Mst. Maqsood Begum & 14 others vs. Naseem Akhtar & 9 others [2016 SCR 33], it was observed by this Court as under: ".... The order passed by an authority cannot be set aside without arraying the authority as party in the line of the respondents. No effective order can be passed against a person who is not impleaded as party in the line of the respondents. There is a plethora of judgments on the point that without arraying the necessary party as respondent, no effective order can be passed against such party......"
12. It was argued by the learned Advocate for the appellant that the point raised with regard to the maintainability of the writ petition before the High Court, on the ground of non-impleadment of the party was not taken in the pleadings, therefore, could not be allowed to be raised at the time of arguments. The same has no substance because Respondent No. 6 has specifically raised the said point in the written statement filed before the High Court and the same was agitated forcefully during the course of arguments. It may be stated here that in numerous cases it already stood resolved by this Court that where an effective writ could not have been issued due to non- impleadment of a necessary party, the objection may not be raised by an aggrieved party as the same could be gone into by the Court suo-moto. The reason for it is obvious that the writ being the discretionary relief the same could not have been issued in absence of necessary party being on the record.
In view of the above, the learned High Court has committed no illegality while passing the impugned judgment. The appellant has failed to point out any illegality or infirmity in the impugned judgment. The case law referred to and relied upon by the learned Advocate, representing the appellant is not applicable in the case, having distinguishable facts. Resultantly, finding no force in this appeal, the same is hereby dismissed, with no order as to costs.