Kh. Muhammad Nasim, J. The captioned appeals by leave of the Court, have been directed against the consolidated judgment of the High Court dated 04.04.2023, passed in Writ Petitions No. 1528/2019 and 975-A/2021. Since, both the appeals have arisen out of the common judgment of the High Court, therefore, the disposal of the same through this single judgment is felt advised.
2. The succinct facts forming the background of the captioned appeals are that apart others, a post of Deputy Director Quality Enhancement Cell (QEC) B-18, was advertised by the University of the Azad Jammu and Kashmir, vide advertisement dated 21.05.2018. The appellant, Khawaja Muhammad Arif and the respondent Tahir Iqbal, challenged the said advertisement by filing separate writ petitions before the High Court. After necessary proceedings, the learned High Court through the impugned consolidated judgment accepted the writ petitions in the following terms: "In vista of the above factual matrix of the cases, while partially accepting both the writ petitions the impugned advertisement dated 31.05.2018 only to the extent of the post of Deputy Director
(QEC) BPS-18 is hereby set aside. Consequently, the respondents, University Authorities are directed to fill in the post of Deputy Director (QEC PSB-18) by adhering to the quota for promotion strictly in accordance with law and order of seniority expeditiously.
This judgment of the learned High Court is the subject matter of the instant appeals by leave of the Court.
3. Raja Amjad Ali Khan, the learned Advocate, while appearing on behalf of the appellants (University of AJ&K & others), 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 eye of law. He further submitted that under statute 6(2) of the University of Azad Jammu and Kashmir Establishment (Recruitment) Statutes 1983, it is the prerogative of the competent authority to determine the method for filling up a post either by initial recruitment or by promotion. In the instant case, the competent authority advertised the post of Deputy Director (QEC) B-18, vide advertisement dated 21.05.2018 for filling up the same by initial recruitment. In pursuance of the said advertisement, Respondents No. 1 and 2, in appeal No. 262 of 2023, applied against the said post and were short listed but instead Of participating in the test and interview, they challenged the advertisement dated 21.05.2018 by filing separate writ petitions before the High Court on 20.09.2019 and 17.03.2021, respectively. He added that after applying against the advertised post, the respondents acquiesced themselves and estopped by their conduct to challenge the advertisement dated 21.05.2018, under the principle of acquiescence and estopped. Furthermore, under statute 3 of the University of the Azad Jammu and Kashmir Employees (Appeals) Statues, 1999, the respondents had the alternate remedy to file an appeal before the competent authority. In this state of affairs, the writ petitions filed before the High Court were not maintainable. The learned High Court failed to consider all these legal aspects of the case and illegally set aside the advertisement dated 21.05.2018. In support of his contentions, the learned Advocate referred to and relied upon the cases reported as [2007 SCR 97] and [2022 SCMR 1454] and prayed for acceptance of appeal.
4. Mr. Farooq Hussain Kashmiri, the learned Advocate, representing the appellant/respondent (Kh.
Muhammad Arif), submitted that the impugned judgment passed by the learned High Court to the extent of acceptance of the writ petition filed by the respondent (Tahir Iqbal), is not maintainable because the said writ petition was hit by the principle of lathes and liable to be dismissed on the sole ground, hence, while accepting the appeal filed by the appellant, Kh. Muhammad Arif, the impugned judgment may be modified accordingly. As regard, the appeal filed by the University of AJ&K and others, the learned Advocate submitted that the post in question falls in the quota of promotion but the University Authorities, illegally advertised the same. The learned High Court has committed no illegality while setting aside the advertisement dated 21.05.2018. He prayed for dismissal of the appeal filed on behalf of the University Authorities.
5. Mr. Mansoor Pervaiz Khan, the learned Advocate, representing the respondent, Tahir Iqbal, has submitted written arguments, wherein, he has reiterated the same grounds as incorporated in the concise statement, hence, need not to be repeated over here, for the sake of brevity. The learned Advocate, has prayed for dismissal of both the appeals.
6. We have considered the arguments advanced at bar by the learned Advocates, representing the appellants in both the appeals, as well as the written arguments filed on behalf of the respondent, Tahir Iqbal and gone through the record made available along with the impugned judgment. The controversy in this lis relates to the appointment/promotion against the post of Deputy Director (QEC) B18. The University of Azad Jammu and Kashmir, apart others, advertised the post in question, vide advertisement dated 21.05.2016 for filling up the same by initial recruitment on open merit. The respondents in appeal No. 262 of 2023, challenged the Bald advertisement by filing separate writ petitions before the High Court on the ground that under the University of Azad Jammu and Kashmir Establishment (Recruitment) Statutes, 1983, the post in question is to be filled in by promotion. Keeping in view the proposition involved in the matter we have gone through the University Statutes as well as record of the case. Through notification dated 24.08.2015, forming part of the High Court file as annexure "B" at page 8/43, the existing statutes were amended and existing schedule for method of recruitment against the posts was repealed.
The impugned post of Deputy Director (QEC) B-18, falls at serial No. 29 of the referred schedule, wherein, the method of recruitment is given as below: Sr.
No.Name of the postMethod of RecruitmentQualification/Experience/Length of Service 29 Deputy Director (QEC)
BPS-18By Promotion/ Selection 50% By Direct Recruitment 50%By Direct Recruitment: 1st Class Master's degree in any of the computer Science/IT/Statistics/Business Administration /Engineering from a recognized Institution with five year's Experience in BPS-17 preferably in Quality Assurance.
Age: 21-35 years By Promotion/Selection: 1st Class Master's degree in any of the Computer Science/IT/Statistics/Business Administration/Engineering from a recognized Institution with 5 years' service in BPS-17.
The perusal of the Statute (supra), reveals that the post of Deputy Director (QEC) B-18, is to be filled in 50% by promotion/selection and 50% by initial recruitment. The contention of the learned Advocate, representing the appellants in Civil Appeal No. 262 of 2023, is that under Statute 6(2) of the University of Azad Jammu and Kashmir Establishment (Recruitment) Statutes, 1983, the method of recruitment either by initial recruitment or by promotion is to be determined by the competent authority. There is no cavil with the proposition that under Statute 6(2) of the Establishment (Recruitment) Statute, 1983, the determination of the method for recruitment is the job of the competent authority but the aforesaid Statute cannot be read in isolation, rather the same is to be read with Statute 6(3), which clearly provides that the quota for promotion against a post is to be adhered at first. For convenience Statute 6(3) of the Establishment (Recruitment) Statute, 1983, is reproduced hereunder: "6(3). Appointment to a vacancy to be filled by promotion shall be made first and appointment to a vacancy to be filled by initial recruitment shall be made later."
The language applied in the Statute reproduced hereinabove, clearly postulates, that while making the appointment against a vacancy the quota of promotion must be adhered at first. In the instant case, the University Authorities, failed to adhere to the quota of promotion and advertised the post in question for initial recruitment in violation of Statute 6(3) of the Establishment (Recruitment)
Statutes, 1983. The learned High Court after thorough deliberation of the record as well as the law on the subject has resolved the controversy in a legal manner and committed no illegality while setting aside the advertisement dated 21.05.2018, to the extent of the post in question.
6. So far as the argument of the learned Advocate, representing the appellants in Civil Appeal No. 262 of 2023, that in pursuance of the advertisement dated 21.05.2018, the respondents Kh.
Muhammad Arif and Raja Tahir Iqbal, applied against the post in question, hence, they were estopped to challenge the advertisement, is concerned, as we have reached to the conclusion in the preceding paragraph that the advertisement dated 21.05.2018, was issued in violation of the statutory provision, and it is settled principle of law that there is no estoppel against law, thus in this scenario the argument looses its weight. Reliance may be placed upon a case reported as Mirpur Development Authority vs. Muhammad Hanif and 23 others [2005 SCR 44], whereby it was observed by this Court under: ".... This objection was raised by the learned counsel for the appellant even before the High Court and was rightly repelled by the said Court. No Court is allowed to travel beyond the law, therefore, no estoppel can be pleaded against the provisions of law. The law was clear on the subject and was rightly so interpreted by this Court in a case titled Military Estate Officer Hazara Circle Abbottabad vs. Nasar Abbas Kazmi [Civil Appeal No. 79 of 1997 decided on 20.1.1998]. Therefore this appeal, having no merits, stands dismissed with costs.
Similarly, in the case reported as Shahzad Abdul Hussain vs. Chief Conservator of Forest and 5 others [2008 SCR 514], it was observed by this Court under: "10. .....As regards the arguments of Sardar Muhammad Sadiq Khan that respondents in writ petition titled Amjad Rasheed v. Shahzad Abdul Hussain in the High Court have admitted that the appointment of the appellants is according to law, after this position the respondents are estopped to say that the post was not advertised, has no substance. It is settled principal of law that there is no estoppel against law. The argument has no force and is repelled."
In another case reported as Industrial Development of Pakistan vs. Arshad Mehmood and 9 others [2013 SCR 929], it was observed by this Court in para 7 under: "7. Even otherwise according to the celebrated principle of law, there is no estoppel against law.
Neither by joining the proceedings by the parties, jurisdiction is conferred upon the Courts nor the Courts can be created without law made under the Constitutional provisions. This Court in the case reported as Muhammad Suleman & another vs. Javed Iqbal & others, [PLJ 1982 SC (AJK) 46), while dealing with the identical proposition has observed as under: "38. It is settled that the principle of estoppel cannot be allowed to defeat the provisions of a statute or enactment which affects the jurisdiction of a Court. A party cannot, by its admission or previous conduct, confer jurisdiction on a Court where none exists. The doctrine of approbate and reprobate, or consent or waiver, which would apply to the conduct of the parties, is not applicable to the case of a statute or an order passed without jurisdiction; and when there is a complete lack of jurisdiction, no consent or acquiescence can cure the illegality. An order which is not an order of a Court of competent jurisdiction can never be pleaded as en estoppel."
In view of the above, the argument of the learned Advocate, representing the appellants in Civil Appeal No. 662 of 2023, regarding the attraction of principle of estopple in the case, is hereby repelled. Keeping in view the particular circumstances of the case, the question of lathes as argued by the learned counsel for the appellant/respondent Kh. Muhammad Arif, is also not attracted in the case in hand. The impugned judgment passed by the learned High Court is perfectly legal, calling for no interference by this Court. The case law Referred to and relied upon by the learned Advocate, representing the appellants in Appeal No. 262/2023, having distinguishable facts is not applicable in the case in hand.
Resultantly, finding no force, these appeals are hereby dismissed. No order as to costs.