' SARDAR SAID MUHAMMAD KHAN, C.J.---This appeal has been directed against the judgment of the High Court dated 28-6-2000, whereby accepting the writ petition filed by Munawar Hussain, respondent No,1 the writ of prohibition was issued against the Government in terms that the Government Notification dated 9-1-1999 was not to be revoked and no inquiry or investigation against respondent No,1 shall be conducted in future by the Services and General Administration Department or any other Department in any manner.
2. The brief facts of the case are that Munawar Hussain, respondent, filed a writ petition in the High Court alleging that he was inducted as Overseer in B-11 on 18-4-1989. Subsequently, on the recommendation of respective Selection Board, he was promoted to B-16 and was again promoted as S.D.O. In grade 17; his promotions were made against the departmental quota reserved under rules. It was further alleged that Saghir Ahmad Mughal, the appellant herein, who was serving on contract basis as S.D.O. In the same department was relieved from service on the ground that he was not qualified for direct appointment as S.D.O. In view of the Engineering Council Act, 1976. He submitted an application before the Chairman Ehtesab Commission and the Azad Jammu and Kashmir Government alleging that diploma/ other testimonials on the basis of which the respondent was inducted in service were fictitious and fraudulent. Consequently, a regular inquiry was held by the Services Department and a detailed report was submitted to the Government through Secretary Education on 15-9-1997 holding that the allegations levelled by the appellant, herein, were without any foundation. It was further alleged that the Project Director wrote a letter to the Government that at the time of appointment of respondent, he was diploma holder in chemical technology but due to non-availability of diploma holders in civil engineering the condition of qualification was relaxed by the Project Director vide order dated 25-4-1989, Consequently, the Government also approved the factum of relaxation of qualification or for that matter itself relaxed the qualification of Munawar Hussain, respondent herein, and his services were regularized which is evidence from notification dated 9-1-1999. It was further alleged by the respondent in the writ petition that after the aforesaid notification dated 9-1-1999, the Additional Secretary (Regulations) of Services Department again re-opened the matter at the instance of Saghir Ahmad Mughal, appellant herein, for the revocation of notification dated 9-1-1999 whereby the inquiry against Munawar Hussain, respondent, was dropped and his service was regularized. It was prayed that the subsequent proceedings initiated by the Services Department for cancellation of notification dated 9-1-1999 are violative of law because the same having been acted upon cannot be revoked, especially so when the service of the respondent has been regularized. Consequently, he prayed for a writ of prohibition against the concerned authority not to revoke notification dated 9-1-1999.
The High Court after taking necessary proceedings in the matter, accepted the writ petition and issued a direction to the concerned authority not to revoke the notification. The High Court has observed that the services of Munawar Hussain, respondent, have been duly regularized and his qualifications for appointment as Overseer were duly relaxed firstly by the Project Director and thereafter by the Government. Thus, the High Court opined that subsequent proceedings against the respondent initiated at the instance of the appellant by the Services Department are illegal and only the Education Department was competent to deal with the matter which has already been dealt with and notification dated 9-1-1999 had been issued.
3. Mr. M. Tabassum Aftab Alvi, the learned counsel for the appellant, has argued that the judgment of the High Court is not sustainable because the same goes beyond the scope of the writ petition filed by respondent No,1. He has further contended that notification dated 9-1-1999 being illegal cannot be protected by filing a writ petition because the respondent was allegedly guilty of fraud by making insertion in his diploma so as to show that he was diploma holder in civil engineering whereas it was not so. He has further contended that writ petition filed by the respondent was not competent because the same pertains to his terms and conditions of service and as such the matter could be probed into only by the Service Tribunal. He has further contended that the appointments of respondent as Overseer and Assistant Engineer were against relevant rules because the same were not made on the recommendations of relevant selection authority; and the post of Overseer was not advertised as required by the relevant rules. He has maintained that the observation of the High Court that the appellant was not eligible for appointment as Assistant Engineer was not only incorrect but no such relief' was sought by the respondent the point was not relevant for deciding the writ petition filed by the respondent. He has further argued that in fact the appellant, herein, was not initially impleaded as a party in the writ petition and he was only subsequently impleaded on the application made by the appellant herein. The learned counsel has cited a case reported as Pir Saleh Shah and 6 others v. The Custodian of Evacuee Property, Pakistan, Lahore and another 1972 SCMR 543 in support of his contention that as the petitioner- respondent was guilty of committing forgery he was not entitled to any relief in exercise of writ jurisdiction.
4. In reply, Mr. Ghulam Mustafa Mughal, the learned counsel for respondent No,1, has 'contended that appointment of petitioner-respondent as Overseer and his promotion as Assistant Engineer were not challenged by the appellant at any stage. Thus, the appellant is not competent to raised these questions in answer to the writ petition filed by respondent No,1, specially, so when the services of appellant as Assistant Engineer have been terminated on the ground that he being not a graduate in civil engineering, could not be directly appointed on the said post by way of initial recruitment. The learned counsel has also contended that as the respondent apprehended that respondents Nos.2 and 3 were again holding inquiry at the instance of the appellant, herein, he was competent to file writ petition seeking a direction against the said respondents not to re-open the matter when the same had been finally decided as a result of earlier inquiry. He has cited an unreported case entitled Muhammad Tufail v. Azad Government and another (Civil Appeal No,14 of 1994 decided on 9-4-1994) in which one of the grounds for dismissing the appeal was that as the promotion orders of the respondent in the case as Draftsman, Overseer and Sub-Engineer were not challenged when those were made, the same could not be challenged afterwards.
5. Kh. Attaullah, the learned counsel for respondents Nos.2 and 3 has argued that the Government had no intention to re-open any inquiry against respondent No,1 and as such it was not appropriate to issue any writ of prohibition against the .Government. He has contended that this stand was specifically taken by respondents Nos.2 and 3 in the High Court as is evident from Paragraphs 8, 9 and 10 of the impugned judgment but despite that a writ of prohibition was issued by the High Court. The learned counsel has argued that when the concerned authorities were not contemplating a fresh inquiry against respondent No,1 there was no question of issuing a writ against respondents Nos.2 and 3.
6. We have given due consideration to the arguments raised at Bar. For elucidating the matter paragraphs 8, 9 and 10 of the impugned judgment are reproduced as under:-- "8. Written statement on behalf of the Government has been submitted on June 2, 2000. It is clearly shown that proceedings for enquiry had been dropped through Government Notification dated January 9, 1999. Due to some misunderstanding the proceedings for the withdrawal of the order dated January 9,1999 were stopped and there was no more proceedings against the petitioner for revoking the order dated January 9, 1999, nor is there any action in hand for initiation of the fresh enquiry against the petitioner. A letter has been also placed on record which shows that Ehtesab Cell had also intimated the Deputy Secretary S&GAD that there was no enquiry pending with the Ehtesab Cell against the petitioner.
9. The learned Additional Advocate General has, through his endorsement dated June 2, 2000 placed a copy of this letter on the file of this Court. He has also placed on record a letter addressed to the District Monitoring Cell showing that an earlier letter addressed to the said Cell on April, 28, 2000 was withdrawn by the S&GAD.
10. On the face, of the admission made by the Government through the learned Additional Advocate General that the Government is not intending to hold any enquiry into the alleged forgery of the relevant documents no further proceedings are ordinarily required but the counsel for the petitioner stated that a mischief is being created by respondent No,4 and his supporting party, therefore, the matter should be probed into by the Court itself. An application was also submitted by the petitioner that his documents may be referred for verification through' an officer appointed by the Court so that the controversy could be settled by the Court once for all It is evident from the above paragraphs that respondents Nos.2 and 3, against whom the writ of prohibition was issued, categorically took the stand in the High Court that the Government was not contemplating to annul the notification dated 9-1-1999 or initiating any fresh inquiry against respondent No,
1. Thus.
The High Court was not justified to go into un-necessary questions after the aforesaid stand by the concerned authority merely because appellant, herein, was insisting on his stand or the Court deemed it proper that matter should be finally clinched by giving decision on the points which were not even the subject of controversy between the parties in view of their pleading. The High Court has unnecessarily probed into the question, as to whether the appellant, herein, was qualified for being appointed as Assistant Engineer or not; the observations in the impugned judgment that if the concerned authority wanted to consider the appointment of the appellant, herein, as Assistant Engineer on some post other than the one which was occupied by respondent No,1, were also uncalled for. Obviously, the aforesaid observations are not only self contradictory but were irrelevant so far as the relief sought by respondent No,1 was concerned. Thus, we are constrained to hold that the observations made by the High Court are of no legal consequence, specially so when the writ petition filed by respondent No,1 after the stand taken by respondents Nos.2 and 3, as indicated above, had become in fructuous and should have been dismissed on that sole ground.
' 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 the ground that as no proceedings were contemplated by respondents Nos.2 and 3 for annulling the notification dated 9-1-1999 or initiating any fresh inquiry against respondent No,1 for committing forgery, the writ filed by respondent No,1 was unnecessary.
In the circumstances of the case, we make no order as to the costs.