' MUHAMMAD YUNUS SURAKHVI ,J.----This appeal has been directed against an order passed by the High Court on 18th of March,1997,whereby the Writ Petition No, 208 of 1996 filed by respondent No, 1 Hafiz Muhammad Ishaque was accepted in the manner that appellant Qazi Liaqat Ali Qureshi, not being qualified for the post of Tehsil Qazi shall not be appointed as such, while the Writ Petition No, 263 of 1996 filed by Qazi Liaqat Ali Qureshi, appellant herein, was dismissed.
2. The precise facts, arising out of the present appeal, are that nine posts of 'Tehsil Qazis' were available with the Government and it was decided to fill them up on ad hoc basis. One of the posts of 'Tehsil Qazis' was to be filled up from district Poonch in pursuance of the quota policy. Appellant Qazi Liaqat Ali and respondent Hafiz Muhammad Ishaque were amongst those who applied from District Poonch. The candidates were interviewed by a Selection Committee. Admittedly, appellant, Qazi Liaqat Ali secured the first position for the post of Tehsil Qazi reserved for District Poonch while respondent Hafiz Muhammad Ishaque was at serial No, 2 in the merit list prepared by the Selection Committee. On 24th of September, 1996, respondent Hafiz Muhammad Ishaque fled a writ petition in the High Court and prayed that the selection of Qazi Liaqat Ali may be declared invalid on the grounds that he did not fulfil the academic qualifications prescribed for the post and he was over- age. The appellant also filed a writ petition in which he stated that although he had topped the list but his appointment order was not being issued and the respondent had secured an order from the Prime Minister for his own appointment. There is yet another writ petition between the parties, which is not relevant for the purposes of the present proceedings.
3. The High Court has disposed of all the writ petitions together. The writ petition filed by respondent Hafiz Muhammad Ishaque has been accepted while the one filed by the appellant was dismissed.
It has been held by the High Court that appellant is not academically qualified for appointment as Tehsil Qazi. As a consequence, a direction has been issued that he shall not be appointed to that post. The present appeal has been filed to challenge the validity of the order passed by the High Court.
4. Mr. M. Tabassum Aftab Alvi, the learned counsel for the appellant, vehemently contended that the writ petition filed by respondent Hafiz Muhammad lshaque should have been dismissed on the ground that the said respondent did not attach the certified copy of the merit list which he challenged in the High Court. The learned counsel for the appellant strenuously argued that although the Chairman, Selection Committee was arrayed as one of the respondents but the Selection Committee was not impleaded as a respondent which was a necessary party because the merit list and the recommendations which were challenged in the writ petition had been prepared by the said Committee. The learned counsel placed reliance on 1996 SCR 161, 1992 SCR 214, PLD 1985 SC (AJ&K) 102 and unreported judgment of this Court in Syed Muhammad Akram Shah v. Chairman, Allotment Committee etc. (Civil Appeal No, 7 of 1995). It was further contended by the learned counsel for the appellant that the appellant fulfilled the qualifications for appointment as Tehsil Qazi. The learned counsel made a reference to the relevant Rules which are called 'The Azad Jammu and Kashmir Shariat Court (Qazi Branch) Service Rules, 1990. The qualifications prescribed for the post of Tehsil Qazi are as follows:--{{TABLE}}
(i) Shahadat-ul-Almiyya Fil-Uloomil Arabia Wal Islamia; or
(ii) Ashahadat-ul-Fazeela Sanad ' Awarded by Wafaq-ul-Madaris; or ' Ashahadat-ul-Faragh Sanad Awarded ' by Tanzeem-ul-Madaris; or ' Ashahadat-ul-Alia Sanad Awarded by Wafaq-ul-Madaris-ul- ' Salfia (Ahl-i-Hadis); or ' Sultan-ul-Afazil Sanad Awarded by ' Wafaq-ul-Madaris, Shia after Dore-e-Hadis; ' Provided that such Sanad Holders have qualified in two ' additional subjects other than ' Arabic and Islamic Studies at the B.A. Level and ' have also qualified in elective Pakistan Studies and Islamic ' Studies Papers at the B.A. Level from a recognised University; or
(iii) Graduate in Shariat law from any recognised University.' {{TABLE}}
5. It is explained by the learned counsel for the appellant that the appellant holds the Sanad' of 'Shahadat-ul-Almiyya Fil-Uloomil Arabia Wal Islamia' which is mentioned at serial No, (i) and the same is equivalent to M.A. Arabic but the High Court has wrongly held that a person cannot be appointed as a Qazi on the basis of this 'Sanad' unless he also qualifies in two additional subjects as laid down in the proviso reproduced above. It is contended on behalf of the appellant that the proviso is only attached to the Sanads' mentioned at serial No, (ii) and is not applicable to a person who holds a 'Sanad' mentioned at serial No, (i). It is also contended by Mr. M. Tabassum Aftab Alvi that the appellant also qualifies to become a Qazi on the basis of other Sanads' which are mentioned at serial No, (ii) above.
6. The points raised by the learned counsel for the appellant were vehemently opposed by Sardar Rafique Mahmood Khan, the learned counsel for Hafiz Muhammad Ishaque respondent. It is contended by Sardar Rafique Mahmood Khan that appellant did not qualify to be appointed as Tehsil Qazi because of the lack of his educational qualifications. The learned counsel has submitted that the proviso referred to in category (ii) applies to both the categories and it was enjoined upon the appellant that he should have qualified the two additional subjects other than Arabic and Islamic Studies at the B.A. Level and have also qualified in Elective Pakistan Studies and Islamic Studies. According to the learned counsel the interpretation of .The proviso made by the High Court is open to no exception. As regards the submission made by the learned counsel for the appellant that the writ petition was liable to be dismissed for not attaching the certified copy of the merit list with the writ petition merits no consideration for the simple reason that the same stands admitted by the appellant. Similarly the learned counsel contended that the objection with regard to non-implement of Selection Committee as one of the respondents was not raised in the written statement and as such the objection not raised at an earlier opportunity could not be allowed to have been, raised during the course of arguments.
7. We have given our due consideration to the arguments of the learned counsel for the parties and perused the relevant record and have reached the conclusion that the appellant is qualified for appointment as Tehsil Qazi. We have reached the aforesaid conclusion for the following among other reasons:--
(i) In accordance with the circular of University Grants Commission dated November 17, 1982, the aforesaid Degree has been recognised to be equivalent to M.A. In this regard the relevant portion of the said circular is reproduced below for the sake of convenience:-- "To bring uniformity to the nomenclature of the Asnad issued by different schools of thought, it was decided that henceforth the final Sanad (Degree) recognized as equivalent to M.A. - Arabic and Islamic Studies will be known 'Ashahadat-ul-Almiyya Fil UloomilAlamia.'
' The aforesaid circular is duly relied upon by the parties and is available at page No, 117 of the High Court's file in the writ petition filed by respondent Hafiz Muhammad Ishaque:
(ii) the proviso attached with the Sanads mentioned in category No, (ii) clearly refers to Shahadatul Fazeela, Shahadat-ul-Faragh and Shahadat-u12Alia etc. Awarded by different schools of thought and it has no nexus with category No, (i) which is equivalent to a Degree of M.A.;
(iii) Ashahadat-ul-Sanavi Ahlmata is equal to Matric. Ashahadat-ulSanavi Talkhasa is equal to F.A., Ashahadat-ul-Alia is equal to B.A. And Ashahadat-ul-Almiyya Fil-Uloomil Arabia Wal Islamia is equal to M.A.; and
(iv) the respondent, Hafiz Muhammad Ishaque, at the time of filing his writ petition before the High Court, while disclosing his academic qualifications, duly averred that he was a holder of Degree of Shahadat-ul-Almiyya which was equivalent to M.A. Islamiat/Arabic.
Yet there is another certificate relied upon by the respondent available at page No, 69 of the High Court's file verifying the fact that the Sanad of Shahadat-ul-Almiyya Fil-Uloomil Arabia Wal Islamia of Waqf-ul-Madaris obtained by respondent is equivalent to M.A. Arabic/Islamic Studies. It is, therefore, clear that both the appellant and respondent are holders of Sanads' which are equivalent to M.A. As the appellant topped the merit list so he had a preferential right to be appointed as Tehsil Qazi instead of respondent, Hafiz Muhammad Ishaque, who secured the second position.
8. The confusion, most probably, arose when a learned Judge in the High Court interpreted the Sanad-holders of Shahadat-ul-Alia etc. In the way that such Sanad-holders must have qualified in two additional subjects other than Arabic and Islamic Studies and must have qualified in elective Pakistan Studies and Islamic Studies at B.A. Level from any recognized University. It may be pointed out that these conditions distinctly relate to the Sanad-holders of Shahadat-ul-Alia etc. And not to Sanad-holders of Shahadat-ul-Almiyya Fil-Uloomil-Arabia-Wal-Islamia. Suffice it to say that the Appellant apart from having a Degree of Shahadat-ul-Almiyya Fil-Uloomil Arabia Wal Islamia is having the additional qualification of possessing the Degree of Shahadat-ul-Alia Fil-Uloomil Arabia Wal Islamia being equivalent to B.A. (Hons.) from Saudia University.
9. Even otherwise we have no doubt in our mind that the Selection Committee which conducted the test and interview of the appellant as well as the contesting respondent and prepared the merit list which was subject of challenge before the High Court was not arrayed as a respondent in the writ petition, though it was a necessary party by all means. In the writ petition it was averred more than once by the contesting respondent that the Selection Committee in derogation of the rules declared the appellant as being successful in the test and interview and placed him at serial No,1 in the merit list. It was also averred that the Thanad' which was produced before the Selection Committee by respondent No,4 was not equivalent to B.A. Nor he had passed the additional subjects as provided in the Rules but the Selection Committee travelled beyond its jurisdiction and placed the appellant on the top of merit list. These averments show that the basic grievance of the respondent was against the Selection Committee which was, as said earlier, not impleaded as a respondent. By now it stands settled that if a necessary party which is not impleaded as respondent in absence of which no effective writ could be issued the writ is liable to be dismissed on the sole ground. In the reported case Kh. Ghulam Qadir and 5 others v. Divisional Forest Officer Demarcation and 3 others (1996 SCR 161), the appellants did not array Board of Revenue as one of the respondents, however, Member, Board of Revenue was arrayed as one of the respondents in the writ petition. It was held that the writ petition filed before the High Court by the appellants was not competent on account of non-joinder of necessary party. In another unreported case of this Court titled Syed Muhammad Akram Shah v. Chairman, Allotment Committe' (Civil Appeal No,7 of 1995 decided on 24-7-1995), 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 having been raised from the opposite side. In a reported case of Muhammad Resham Khan v. Chairman, Inspection Team and 3 others 1990 CLC 1355 the Inspection Team whose order was challenged in the writ petition was not impleaded as a party however the Secretary, Inspection Team was impleaded as one of the respondents. Dealing with the proposition it was observed by this Court at page No, 43 in a following manner:- "It is elementary requirement that in a writ petition the Government or the person performing the functions in connection with the affairs of the State whose order is challenged should be made a party. The word 'person' is defined in section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974. The definition is reproduced below:- '44. (1) ...
(2) ...
(3)
(4) ...
(5) In this section unless the context otherwise requires 'Person' includes anybody 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 and Kashmir), the High Court or a Court or Tribunal established under a law relating to the Defence Services.'
"It is clear that the Inspection Team is a 'Person' within the meaning of above definition and is not inter-changeable with the Chairman or the Secretary of the Team. Since Inspection Team as such was not made party in the High Court writ entailed dismissal on this ground alone."
' Identical view was taken in cases reported as Abdul Hamid v. Muhammad Zamir (1980 PSC 1041) and Mirza Lal Hussain v. Custodian of Evacuee Property' (1992 SCR 214).
10. The contention raised by the learned counsel for the respondents that as the objection was not raised in the written statement so the same could not have been raised at a later stage merits no consideration. 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 any aggrieved party as the same could be gone into by the Court suo motu. 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. Thus, in view of the aforesaid discussion the writ petition filed by respondent being incompetent was liable to be dismissed.
11. As regards the objection raised by the learned counsel for the appellant that Muhammad Ishaque, respondent, at the time of filing the writ petition did not attach the attested copy of impugned merit list prepared by the Selection Committee along with the writ petition and, thus, the writ petition entailed dismissal, in our view, in the circumstances of the case, has no substance. It is indeed correct that a party is required under law to attach with the writ petition an attested copy of the impugned order but the situation is totally different in a case where the facts alleged are admitted by the other party. In the averment made by the respondent with regard to impugned merit list, the contents of the same were admitted to be true by the appellant. In such circumstances we cannot ignore the basic principle of law that facts admitted need not be proved.
In this view of the matter the preliminary objection raised by the learned counsel for the appellant is hereby repelled; but all the same it is not going to make any substantial difference in so far as the fate of writ petition filed by respondents is concerned, in view of our observations in the earlier part of this judgment.
12. In the light of what has been stated above, by setting aside the impugned order of High Court, we accept the appeal of appellant and order the dismissal of writ petition filed by Muhammad Ishaque, respondent and uphold the merit list prepared by the Selection Committee with no order as to costs.