MUHAMMAD YUNUS SURAKHVI, C.J.---This appeal, by way of leave of the Court, is the outcome of Writ Petition No.492 of 2000 which was filed by Abdul Shakoor, respondent No.1 herein, challenging the appointment of present appellant against a post reserved for teacher's son on the ground that he was appointed without advertisement of post, without the determination of merit and further that the appellant was not P.T.C., as such under rules he was not entitled and qualified to be inducted in the service of Education Department. The learned Judge in the High Court allowed the writ petition filed by Abdul Shakoor, respondent herein, by observing that if the appellant herein and one Shah Jahan are untrained and they do not fulfil the requirements of posts, in that case their posts shall become vacant and the same be filled in after due process of law. This order of the High Court passed on 5-11-2001 has been assailed in the present appeal on various grounds.
2. Mr. M. Tabassum Aftab Alvi, the learned counsel for the appellant, argued that the writ petition filed by Abdul Shakoor, respondent herein, was liable to be dismissed summarily on the following technical grounds:--
(i) That the appointing authority, Divisional Director (Schools), Muzaffarabad Division, was not arrayed in the line of respondents before the High Court, as such without impleading the necessary party as answering respondent, the writ petition was not maintainable;
(ii) that the attested copy of appointment order of the appellant herein was not appended with the writ petition, therefore, under the High Court Procedure Rules, writ petition against the appellant was not maintainable; and (i.e) that the appellant being a teacher's son was rightly accommodated against a post reserved for teacher's son.
According to the learned counsel --appellant was inducted in the service of Education Department under the rules which were applicable in 1989 and under these rules, P.T.C. Was not the requirement for inducting a person in the teaching staff of the Education Department.
3. Syed Arshad Gillani, the learned counsel for respondent No. 1, strongly defended the order passed by the High Court and submitted that in the written statement before the High Court, no objection was raised by the appellant that without impleading the necessary party, the writ petition was not maintainable, as such the same could not be allowed to be raised for the first time in this Court.
The learned counsel also contended that the appointment of appellant being illegal was liable to be set aside on the ground that the post was neither advertised nor applications were called from the candidates desirous of appointment as teachers. The appellant did not qualify to be appointed as teacher; therefore, the writ petition was rightly issued by the High Court declaring the post as vacant. The learned counsel also contended that the appointing authority of a Primary Teacher is District Education Officer and not the Divisional Director Education, therefore, by not impleading the Divisional Director Education in the line of respondents, the writ petition had not become redundant. The learned counsel also submitted that when the fact of appointment of Mian Muhammad Shafi Nazami was admitted as correct by him, there was no need of filing the attested copy of his appointment order and the writ petition was not liable to be dismissed. The learned counsel for respondent did not controvert the point that the appellant was the son of a teacher.
4. After hearing the respective contentions 'of the learned counsel for the parties, we are of the view that the objection raised by the learned counsel for the appellant that the Divisional Director Education who made the appointment of appellant was a necessary party and without his impleadment as one of the respondents, the writ could not have been issued, has a lot of substance in view of various pronouncements of this Court.
"Since the Election Commissioner was not impleaded as party even if he had no jurisdiction to order for re-polling, we could not have passed any order against him without giving him an opportunity of hearing. Even on this ground, the election petition filed by respondent No. 1, for non- impleadment of necessary party was liable to be dismissed. "
Although the objection regarding the non-impleadment of Chief Election Commissioner was not raised in the written statement, still the Court observed that for issuing certain directions to the Election Commissioner, his impleadment as defendant---respondent was essential.
1998 PLC (C.S.) 153 it was observed at pages 158 and 159 in a following manner:-- "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 was being successful in the test and interview and placed him at serial No. 1 in the merit list. It was also averred that the 'Sanad' 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 do the sole ground."
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 pages 1361 and 1362 in a following manner:-- "It is elementary requirement that in a writ petition 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 meanings 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 the cases reported as Abdul Hamid v. Muhammad Zamir 1980 PSC 1014 and Mirza Lal Hussain v. Custodian of Evacuee Property 1992 SCR 214.
5. The contention raised by the learned counsel for the respondents that as the objection of non- impleadment of necessary party was not raised in the written statement so the same could not have been raised for the first time in this Court merits no consideration in view of findings recorded in Liaqat Ali Qureshi's case, referred to above, at page 160 which are as under:-- "....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."
2001 YLR 421 although the point was not raised in the memorandum of appeal, however, the leave was granted on the point as to whether the contractual liability is enforceable in a writ jurisdiction.
It was observed by this Court that since the leave was granted on the said point, therefore, it requires resolution whether the contractual liability could be enforced through a writ petition.
Consequently it was held that the contractual liability could not be enforced through a writ petition.
6. From the survey of above-referred case-law it becomes crystal clear that it has been the consistent practice of this Court that a legal point can, be allowed to be argued for the first time in this Court even if the same has not been raised in the written statement nor argued before the High Court. In the instant case the point of non-impleadment or necessary party has been taken in the memorandum of appeal as well as in the concise statement and the leave has been granted on the said point. Therefore, the point of non-impleadment of necessary party which goes to the root of the case is allowed to be argued by the learned counsel for the appellant and the objection of the learned counsel for respondents stands repelled. Since the writ petition filed by respondent No.1 in the High Court was liable to be dismissed due to non-impleadment of necessary party, therefore, we need not advert to the merits of the case.
7. In the light of what has been stated above, we accept the appeal and set aside the impugned judgment passed by the High Court on 5-11-2001 and order the dismissal of the writ petition. In the circumstances of the case we pass no order as to costs.