1. BASHARAT AHMAD SHAIKH, J.---The Public Service Commission invited applications for the post of Hospital Pharmacist against the quota fixed for Mirpur District. The appellant as well as respondent No.4 Muhammad Firdous Chaudary were amongst those who filed applications before the Commission. As a result of the interview conducted by the Commission respondent No. 4 was recommended by Public Service Commission for appointment against the post mentioned above.
2. Thereupon the appellant filed a writ petition in the High Court on 17th of January, 1996 seeking a declaration that the recommendation of the Public Service Commission in favour of respondent No. 4 was invalid. Before the writ petition could be fixed for motion hearing the recommendation made by the Public Service Commission was accepted by the Government and respondent No. 4 was appointed as Hospital Pharmacist through a Notification issued on 23rd of January, 1996.
3. Thereafter the appellant amended his writ petition, with permission of the High Court, to tailor to the changed circumstances. The writ petition was dismissed in limine on 27th of February, 1996.
4. Leave to appeal was granted to the appellant to consider some important points to which we will be adverting at the proper place.
5. In the writ petition it was averred by the appellant that in fact it was he who topped in interview conducted by the Public Service Commission but respondent No.4 was illegally awarded extra marks for possessing the degree of M. Phil. With the result that he (the appellant) was related to second position. If was averred that respondent No.4 had not obtained the academic qualification of M.Phil. When the advertisement inviting applications for the post of Hospital Pharmacist was advertised as well as on the last date on which applications for the said post could be filed before the Public Service Commission. It was further averred in the writ petition that one of the members of the Public Service Commission was a close relative of respondent No.4 who "weighed with other members of the Commission in manoeuvring favour for respondent No.4". A Full Bench of the High Court dismissed the writ petition in limine.
6. The first reason recorded by the High Court is that the documents attached with the writ petition were not attested copies while under the Azad Jammu and Kashmir High Court Rules attested copies should have been attached and that by not filing attested copies the petitioner before the High Court had disentitled himself from seeking any relief from the High Court. It was noted that the learned counsel appearing in support of the writ petition made a prayer that record of the Public Service Commission may be summoned, but this prayer was rejected by observing that: "The learned counsel for the petitioner has prayed that we should summon the record of the Commission. Jurisdiction available to this Court under section 44 of the Interim Constitution Act is distinct from supervisory, appellate and revisional jurisdiction. This Court under its extraordinary jurisdiction cannot sit as a Court of appeal. The petitioner, therefore, has wrongly expected from us the role of an Appellate Court."
7. Dealing with the allegation that a close relative of respondent No.4 manoeuvred a favourable result for the said respondent, it was held by the High Court that on this point Muhammad Ajaib was guilty of misrepresentation and suppression of material facts because of which he was not entitled to any discretionary relief. It was observed that Muhammad Ajaib had wrongly stated that he had raised this objection before the Commission but the Commission forwarded its recommendation in favour of Muhammad Firdous Chaudhary without deciding this objection. The High Court observed that the objection about the participation of a close relative was not raised before the Commission and thus could not be permitted to be raised at the belated stage before the High Court and that to when relationship had not been pleaded. The objection about existence of relationship was even otherwise rejected by holding that Ch. Ehsan-ul---Haq and Muhammad Firdous Chaudhary belong to different tribes.
8. Dealing with the main point raised in the writ petition that appellant Muhammad Ajaib got more marks as compared to respondent Muhammad Firdous Chaudhary but the latter was given undue benefit for his Degree in M. Phil. The Full Bench observed as under:-- "Furthermore, the petitioner has taken the plea that in the test and interview, he got more marks as compared to non-petitioner No.4, but in order to give undue benefit to non-petitioner No.4, he was given some marks for his degree in M. Phil. Degree which was not supplied by him alongwith his application. Whether non-petitioner No.4 was given any mark for M. Phil. Degree or not is a question of fact. But there is no proof of these facts on the record. He wanted us to summon the record of the Public Service Commission. As said earlier, this Court in its writ jurisdiction, cannot assume the role of an appellate Court and summon the record of the Commission to examine the same for the satisfaction of any party. Only undisputed pleaded facts are to be taken into consideration. The petitioner has not disclosed any source on the basis of which he is claiming to have come out successful in the test and interview of Public Service Commission. We can lend no help to him in these circumstances."
9. In his submissions in support of the appeal, the earned counsel for; the appellant, Mr. Ghulam Mustafa Mughal, Advocate, submitted that the main point urged before the High Court was about the illegality committed by the Public Service Commission in granting extra marks to respondent No.4 for possessing the academic qualification of M. Phil. With which respondent No.4 crossed the mark-- obtained by the appellant, but this point has been brushed aside by the High Court by recording untenable reasons, He pointed out that important document forming Annexure ' J' was not brought under consideration by the High Court which has led to failure of justice. Annexure 'J' attached with the writ petition is a reply sent by the Public Service Commission to the appellant on 17th of December, 1995 in response to an application submitted by him on 10th of December, 1995 for obtaining some certified copies from the Commission. Through this letter the Public Service Commission informed the appellant that the merit list, recommendations, result etc. Were of confidential nature and could not be supplied to any candidate in pursuance of a' policy decision taken b-, the Public Service Commission. The learned counsel pointed out that this document proved that appellant did his best to obtain certified copies from the Commission but failed. He submitted that in the absence of the certified copies mentioned in Annexure ' J' the only other proof which could be given by the appellant was an affidavit in support of the averments made in the writ petition. He drew our attention to to affidavits forming part of the High Court file. In one of them it was solemnly declared by appellant Muhammad Ajaib that grounds of the writ petition were correct. In the other affidavit he solemnly declared that the averments made in the writ petition "in respect of the non-supply of the certified copies" was correct. The learned counsel referred us to Rule 38 of Azad Jammu and Kashmir High Court (Procedure) Rules, 1984 which is to the following effect: "All questions arising for determination under Rules 31 to 36 shall be decided ordinarily upon affidavits and documents but the Court may direct that such questions as it may consider necessary be decided on such other evidence and in such manner as it may deem fit and in that case it may follow such procedure and may pass such order as may appear to it be just."
10. Mr. Ghulam Mustafa Mughal contended that the rule quoted above all questions falling for determination in a writ petition have to be decided ordinarily on affidavits and documents. Since the Public Service Commission had refused to issue certified copies the best evidence available with the appellant in light of the rule quoted above was an affidavit in support of the averment made in the writ petition that the Public Service Commission illegally awarded extra marks to respondent No.4 for being an M. Phil and that otherwise the appellant had attained highest marks in the interview held by the Public Service Commission. He submitted that an affidavit was duly filed in the High Court by the appellant. It was pointed out that there was no counter-affidavit from the other side when the writ petition was dismissed in limine and, therefore, the only legal evidence on the record of the High Court was the affidavit of the appellant which should have been accepted by the High Court in obedience to rule 38 reproduced above.
11. Mr. Ghulam Mustafa Mughal also submitted that the High Court was not right in observing that the only undisputed facts are to be taken into consideration by the. High Court while deciding a writ petition. He firstly submitted that this observation runs counter to rule 38 reproduced above which specifically lays down that the High Court has the power to direct that any question arising for determination in a writ petition may be decided on such evidence, other than affidavits and documents, and in such manner as the High Court may deem-fit. He pleaded that the High Court has the power to follow any procedure as may appear to it to be just. The learned counsel also submitted it was a general practice of the High Court to summon files from the Government departments while deciding writ petitions, and there was also a general practice of inviting comments from the Government departments before preliminary hearings. He vehemently contended that due to the refusal of the Public Service Commission to issue copies of the relevant documents it was the interest of justice that the High Court would have summoned the record from the Public Service Commission. He submitted that in any case the High Court should determine the factual aspects of the case in light of affidavits and documents.
12. The learned counsel for the appellant also contested the observations of the High Court that the appellant was guilty of misrepresentation. The misrepresentation pointed out by the High Court is as follows:--- ---.... According to the petitioner he raised this objection before the Commission but without deciding - his objection about the Constitution of the Commission, the Public Service Commission made recommendation in favour of non-petitioner No.4 for his appointment as Hospital Pharmacist."
13. He submitted that this observation is based on an assumption that the appellant had averred that he had raised the objection about the participation of a close relative of respondent No.4 before the preparation of the result by the Public Service Commission, but this assumption was not correct. He took us through the relevant part of the writ petition, which is para. 9. It runs as follows:- - "When it became known to the petitioner that one of the members was closely related to the ahoy e-named respondent, the petitioner put in the objection petition, inter alia that one of the members of the Commission is a relative of respondent No.4 who was not competent to share ,the preparation of the result of candidates appearing before the commission. A photostat copy of the above--cited objections is attached and marked as Annexure ' G' . "
14. It was pointed out by Mr. Ghulam Mustafa Mughal that what was stated in para. 9 was that when the appellant came to know that a member was closely related to respondent No.4 he put in written objection that the said member was not competent to share the preparation of the result.
15. He pointed that it was nowhere stated in the writ petition that the application was made before the compilation of the result, as has been understood by the High Court. He also submitted that the High Court was similarly wrong in observing that the appellant had stated that the Commission made recommendation to the Government without deciding his objection.
16. Dealing with the merits of the case the learned counsel for the appellant contended that the last date of filing of applications with the Public Service Commission was 10th April, 1995 and all candidates were required to file applications complete in all respects alongwith all the certificates but respondent No.4 did not file any M. Phil, degree with his application. In fact the result of M. Phil.
17. Examination was declared after the last date for filing of applications In support of this assertion an affidavit was duly filed. Another affidavit was filed to state that the Commission refused to issue copy of the M. Phil. Degree of respondent No.4. It was contended that the main affidavit filed in the High Court also covered the averment made in the writ 'petition that if extra marks had not been illegally awarded to respondent No.4 it is the appellant who had topped in the interview conducted by the Public Service Commission. It was submitted that the affidavits mentioned above were legal proof and the High Court should have admitted the writ petition for regular hearing. The learned counsel also referred us to the Health Department Service Rules, 1984 (as amended up to date) in which it is laid down that for the post of Hospital Pharmacist the minimum qualification was Degree in Pharmacy or Pharmaceutical Chemistry or a Post-Graduate Degree in Chemistry with Pharmaceutics as a special subject and contended that since the appellant held the necessary degree there was no legal justification for awarding any extra marks to respondent No.4 even if his degree of MPhil. In Pharmaceutics -was to be brought under consideration.
18. We may briefly note drat Mr. Ghulam Mustafa Mughal also took exception to the observations of the High Court about the objection that a close relative of respondent No.4 participated in the deliberations of the Public Service Commission. Apart from other submissions the learned counsel referred us to the observation in the judgment under appeal in which the Full- Bench pointed out that Ch. Ehsan-ul-Haque, the Member of the Public Service Commission about whom objection had been raised, and respondent No.4 Muhammad Firdous Chaudhary belong to different tribes. It was pointed out by Mr. Ghulam Mustafa Mughal that the respective tribes of Ch. Ehsan-ul-Haque and Muhammad Firdous Chaudhary are not available in the High Court record. It was also contended that this observation in any case was 'not warranted because the High Court has wrongly assumed that persons belonging to different tribes cannot be closely related to each other.
19. The learned Advocate-General Ch. Muhammad Yusuf, who appeared for the Public Service Commission and the Government, and Ch. Muhammad Azam Khan, counsel for respondent No.4, vehemently supported the order of the High Court. Ch. Muhammad Azam Khan submitted that there was only one point of some substance which was raised in the writ petition that respondent No.4 had obtained less marks as compared to the appellant but his marks were increased by awarding extra marks for the qualification of M. Phil. But there was no proof on the file in support of this assertion. It was submitted by Ch. Muhammad Azam Khan that Public Service Commission is a Constitutional body which is empowered to make recommendations in light of a candidate's suitability for appointment against a vacant post and wide powers are conferred on the Public Service Commission which can be exercised by the Commission while finding out the suitability of the candidates appearing before it. In this connection he referred to rules 3, 4, 10 and rule 15 of the Azad Jammo and Kashmir Public Service Commission (Procedure) Rules, 1994. He submitted that sanctity was attached to recommendation of the high powered Public Service Commission had merely levelling of an allegation 'without any solid proof was not sufficient for admission of a writ petition. He also contended that although the appellant filed an affidavit in support of his assertion but failed to disclose the source of his information. It was also contended by the learned counsel for respondent No.4. That the basic qualification for the post of Hospital Pharmacist was B.
20. Pharmacy which was fulfilled by many candidates and in this situation the Public Service Commission was the sole authority to determine the respective merits of the candidates and to make a recommendation in favour of the candidate who was found to be most suitable for appointment. He claimed that this power had been properly exercised by the Public Service Commission and no exception could be taken to it. He relied on a dictum of the Supreme Court of Pakistan in Dr Habibur Rehman v. The West Pakistan Public Service Commission. Lahore (PLD 1973 SC 144) that ordinarily no writ should lie to challenge the advice tendered by the Public Service Commission in performance of its Constitutional functions.
21. It was also contended by Ch. Muhammad Azam Khan that the recommendation of the Public Service Commission is not binding on the Government and is only advisory In nature. The final authority to make an appointment lies with the Government, which can disagree with the recommendation of the Public Service Commission if any illegality has been committed by the Public Service Commission. It was submitted that since the Government has accepted the recommendation of the Public Service Commission, the recommendation has been further sanctified.
22. In our view the High Court was not right in dismissing the writ petition in limine. As has been pointed out by the learned counsel for the appellant, the High Court failed to take into consideration the document attached with the writ petition as Annexure 'J' contents of which have been discussed in this judgment while noting the arguments of the learned counsel for the appellant. The letter is from the Public Service Commission and is signed by Deputy Secretary of the Commission who has noted that it was being written under directions of the higher authorities. The letter clearly shows that appellant Muhammad Ajaib filed an application on 10th of December, 1995 requesting that he may be given certified copies of the result complied in respect of the post of Hospital Pharmacist merit list, recommendation, result of the interview and some other documents. The Public Service Commission disallowed the prayer on the ground that proceedings of the Commission were of confidential nature about which there was a decision of the Public Service Commission that record of such proceedings was not made available to a candidate. In our view the omission of the High Court to bring this document under consideration has led to failure of justice.
23. The learned members of the Full Bench also failed to notice that an affidavit was duly filed by the appellant in support of the averment that the Commission illegally awarded extra marks to respondent No.4 and thus deprived the appellant of his success, which he had achieved in the interview. This affidavit is legal evidence in light of rule 38 reproduced above. Requirement of rule 38 is that questions have to be decided upon affidavits and documents. An affidavit was available in support of the assertion. There was no counter-affidavit because the stage of filing the counter affidavit had not reached. Therefore in our view the High Court could not brush aside the averment under reference as it would amount to violating rule 38.
24. In light of 'the document and the affidavit mentioned above the writ petition raised a legal point whether the Public Service Commission was empowered to grant extra marks to respondent No.4 for M. Phil. Degree so as to give preference to respondent No.4 as alleged by the appellant. In our view this point necessitated admission of the writ petition.
25. Public Service Commission was one of the respondents before the High Court. If a citizen filed a writ petition against a functionary and alleges an illegality the respondent cannot be given protection by the High Court if it refuses to issue certified copies those are demanded. The learned counsel for the appellant has rightly relied on rule 38 of the Azad Jammu and Kashmir High Court (Procedure)
26. Rules, 1984 and we agree with his elucidation that where it appears to the High Court that it is just it.
27. May direct that question falling for determination in a writ petition may be proved by such other evidence and in ,such manner the High Court may consider fit. The observation made in the judgment under appeal that only undisputed pleaded facts are to be taken into consideration in a writ petition cannot be approved.
28. So far as the arguments of Ch. Muhammad Azam Khan about the wide powers enjoyed by the Public Service Commission and sanctity attached to recommendations of the Public Service Commission are concerned, we are of the view that these are premature at the present stage because the High Court has not decided the writ petition on merits and has not adverted to those aspects of case which have been raised by the learned counsel for respondent No.4. The High Court has stopped the appellant from entering the corridors of justice and we have reached the conclusion that the case was not one in which it could be rightly done. For the present averments supported by affidavit that respondent No.4 was given edge over the appellant by illegally awarding extra marks for M. Phil. Degree and that a close relative of respondent No.4 participated in the proceedings of the Public Service Commission make out a case for admission. The law cited by the learned counsel will have to be interpreted in light of the proved facts which will be done only after admitting the writ petition. The reliance on Habibur Rehman's case does not seem to be well-placed because the rule laid down in that judgment is that although ordinarily no writ should lie to challenge the advice tendered by the Public Service Commission yet a deliberate or flagrant disregard of rule would vitiate the advice tendered by the Public Service Commission. The relevant portion of the judgment may be usefully reproduced:--- "Although we have remarked that the rules are to be regarded as being directory in nature and a disregard thereof would not necessarily vitiate the recommendations made by the Public Service Commission, yet it is clear that all statutory bodies and functionaries are under an obligation to at in accordance with law and relevant rules, and a deliberate or flagrant disregard thereof would render their acts without lawful authority so as to attract the power of judicial review vesting in the superior Courts. In such cases it may be possible to take the view that an illegality in procedure would vitiate the advice tendered by the Public Service Commission to the Government in matters of recruitment and discipline, etc., and accordingly an appropriate writ might lie directing the Public Service Commission to at according to law and the relevant rules in formulating its recommendations and advice, or directing the Government not to at on advice which stands vitiated by the adoption of illegal procedures or deviations from the prescribed rules. We hope, however, that such circumstances would be an exception to the rule that ordinarily no writ should lie to challenge the advice tendered by the Public Service Commission in the performance of its Constitutional functions."
29. In this view of the matter we accept the appeal and, by setting aside the judgment under appeal order the admission of the writ petition for regular hearing. However, the parties will bear their own costs throughout.
30. The parties are directed to appear before the High Court at Muzaffarabad, where the writ petition was originally filed, on 29th of September, 1996.