' SYED MANZOOR RUSSIAN GILANI, J.--- This appeal, with leave of the Court, is filed against the order passed by a learned Single Judge of the High Court at Muzaffarabad on 2-12-2004 in Writ Petition No,322 of 2004 filed on 28-7-2004.
2. The facts giving rise to the filing of present appeal, are that respondent No,1 (herein to be referred as respondent) who was Chief Engineer in the Public Works Department (P.W.D.) of Azad Kashmir Government and was scheduled to retire on 1-2-2002 on attaining the age of superannuation, was transferred as Programme Manager in B-20 in the Area Development Programme through Government Notification No,Admin.S/A-9(89)/98 Gazetted lst/99, dated 29-1-1999. It was also stipulated in the same notification that he will continue against this post upto 31-12-2001 after retirement from the post of Programme Manager. Vide Notification No,Admin/A-1(6)/Gazetted lst/99, dated 22nd June, 1999, he was appointed as Ex-officio Secretary, Planning and Development vide another notification dated 11th October, 2001 his contractual appointment was extended for two years with effect from 1-1-2002. He was later on appointed as Commissioner, Mangla Dam Affairs vide Notification No,Admin/A-1(6)/Gazetted 1st/2003 dated 14-7-2003 and was performing the additional duties of the Chairman of the Mirpur Development Authority. Under Notification No,Admin/A-1(6)/Gazetted 1st/2003, dated 12th of September, 2003, he was appointed for two years as Commissioner, Mangla Dam Affairs under contract policy No,S&GAD/R/A-4(356)/2001, dated 16- 4-2001.
3. The appellant called in question his appointment through a writ of quo warranto on various grounds, main of which is that no civil servant can be reappointed or retained in the service of the Government after attaining the age of 63 years under subsection (1) of section 13 of the Civil Servants Act, 1976. It was also eged that under notification of the Government No,Admin/H-7(11)
Section Officer(lst) 93 dated 16th May, 1993, it was ordered that no civil servant shall be taken into service after retirement except in extraordinary cases; but if there are any unavoidable circumstances, the matter shall be submitted to the Cabinet for approval before giving extension to any such Government servant. It was also contended that a complete ban was imposed through a Notification No,S&GAD/A-17(51)/2001 dated 20-3-2001 on re-employment. It is also contended that under contract policy, dated 16th April, 2001, a person can be appointed on contract only for two years and if its extension is required beyond the period of two years, the recommendation of the. Public Service Commission shall be obtained.
4. The learned Judge of the High Court dismissed the writ petition on the ground that it is activated by malice, details of which are given in the order, and that it suffers from laches.
5. The learned Advocate appearing for the appellant contended that the rule, of laches and malice is applied without any reasonable justification by the learned Judge of the High Court. According to him the appointment of respondent being clearly in violation of the law and the notifications of the Government, was illegal and he is holding the public office without any lawful authority, which is a continuing wrong and gives a recurring cause of action, hence the rule of laches does not apply.
He contended that he had placed before the learned Judge the replication stating the details of the facts regarding malice attributed against the appellant, but the learned Judge returned the replication without considering the contents of the same. He also contended that the learned Judge has failed to attend the points raised in the petition which go to the root of the case. He also contended that the repeated extensions in appointment of respondent were not warranted and the approvals of Cabinet and PSC have not been obtained as required by the notifications referred to above. He placed reliance upon the following authorities:--
(1) Azad Government v. Israr Hussain Mughal 1996 SCR 278;
(2) Muhammad Siddique Farooqi v. Azad Jammu and Kashmir Government and 3 others PLD 1994 SC (AJ&K) 13; (3) Sardar Muhammad Ayub Khan v. Secretary S&GAD and 4 others 2000 YLR 2868;
(4) Shahida Khadim v. Secretary, Education AJ&K and 5 others 2004 PLC (C.S.) 1074; (5) Alam Din v.
Mayor, Municipal Corporation, Mirpur and 4 others 2000 YLR 1891.
6. The learned Advocate for the respondents defending the order passed by the Court below contended that the respondent had placed a the relevant documents which unequivocally speak the assertion of respondent that the petition before the High Court was activated by malice and the Court has come to a right conclusion on the basis of these documents. According to him the respondent had given remarks against the appellant and his son in connection with the acquisition of a Shamilat and Khalsa land in Ratoha Muhammad Ali, Mirpur for which he claimed compensation and he out of that animosity filed the writ petition in the High Court against the respondent. He also contended that appellant failed to controvert the facts constituting malice attributed to him in the High Court by not filing any application. He contended that the writ petition in the High Court and the present appeal before this Court is filed with mala tide design with personal vendetta, nor for upholding the supremacy of law. He also contended that the writ petition is hit by the rule of laches as the respondent was appointed as Commissioner, Mangla Dam Affairs on 12th of September, 2002, and the writ petition is tiled on 28th of July, 2004, after the respondent had given remarks against the appellant. The learned counsel relied upon the following authorities:--
(1) Syed Manzoor Hussain Gilani v. SaM Mullah, Advocate and 2 others PLD 1993 SC (AJ&K) 12; (2) Dr. Kamal Hussain and 7 others v. Muhammad Sirajul Islam and others PLD 1969 SC 42; (3) Muhammad Yaqoob Khan v. Secretary, Forest/Tourism AJ&K and another 1999 MLD 1862; (4) Masudul Hassan v.
Khadim Hussain and another PLD 1963 SC 203; (5) Sardar Riaz Ahmed Khan v. Sardar Muhammad Abdul Rashid Khan 2000 YLR 999.
7. After hearing the learned Advocates for the parties we have gone through the judgment passed by the learned Judge of the High Court, the documents placed before this Court and the High Court besides the law cited at Bar. As the petition is dismissed by the High Court on the ground of laches and for being activated by malice, the proposed judgment would be confined to these two grounds only, as the wisdom of the High Court on the other points is not before us.
8. The perusal of the record reveals that in reports dated 15-12-2003 and 8-7-2004, the respondent recorded the notes which affect the interest of appellant and his son Dr. Muhammad Amin. The reports were in connection with the acquisition of some "Shamilat Deh" and Khalsa Sarkar land proposed to be acquired for Mirpur Development Authority from Village of appellant, Rathoa Muhammad Ali. The Extra Assistant Commissioner reported on 15-6-2004, that according to the Revenue Record of Village Rathoa Muhammad Ali, the appellant is the wner of 63 Kanals and 14.5 Marlas of land and the share of "Shamilat Deh" on the above holding is calculated 7 Kanals, 18 Marlas, out of which appellant has transferred more than 11 Kanals, 12 Marlas of "Shamilat Deh" land beyond his share. Proceedings were initiated by respondent for cancellation of mutation of the land transferred in excess from the "Shamilat Deh" land by the appellant. Upon this report of the respondent, son of the appellant Dr. Muhammad Amin, made an application to the Prime Minister of Azad Jammu and Kashmir for stopping the proceedings of the cancellation of mutation on 9-12- 2000. The application was sent to the respondent for report. The respondent made a report which was clearly against the appellant and his son. A Committee was constituted by the Government through notification dated 23-4-2004 to look into the legality of the allotments in respect of land.
All notifications issued for the acquisition of land of village Rathoa Muhammad Ali, to which appellant belongs, were also cancelled. The respondent has categorically stated in the report that the appellant and his son are involved in illegal activities with respect of "Shamilat Deh" land.
Respondent has also moved to the Government for cancellation of the notification stating that in case the acquisition proceedings are stopped, the Mirpur Development Authority and the public of the Mirpur shall suffer huge loss. This report is undenied.
9. It is clear from the record that the replication to this unequivocal stand against the conduct of the appellant raised in the written statement is not filed by the appellant. However, perusal of the concise statement filed by the appellant in this Court reveals that he had filed the ' replication in the High Court, but it was not accepted. It appears that appellant might have filed the same after the date fixed for it, on account of which the learned Judge has rightly not considered the same.
Although the replication is not considered by the High Court and no opinion is given on it, however, as the copy of the same is placed before this Court contending that this was the replication filed before the High Court, we have gone through the contents of the replication. The facts specifically stated in the written statement before the High Court, as stated above, regarding "Shamilat Deh" and Khalsa land and illegal activities of the appellant are not replied. It is simply stated in the replication that, "as the private respondent has accepted to have ceased to be the Chairman of the M.D.A. After notification dated 18-9-2004, in view of which, the story narrated by him becomes superfluous as well immaterial". The perusal of the concise statement filed before this Court by the appellant in sub-para. (c) of the grounds reveals that appellant has in fact accepted the contention of the respondent of his having made a report against him and his son. The following portion of the concise statement may be reproduced:-- "... This report as a matter of fact was a communication made the Prime Minister Secretariat, simply narrating the plain facts, which was however, not accepted by the Prime Minister and stood ultimately turned down. The same thus, did not literally cause any prejudice to the appellant or his descendants rather the results yielded favoured the appellant. Therefore the aforesaid remarks were immaterial as regards the ultimate results of the report viz. The appellant's interest or those of his co-villagers..."
10. The office of the Commissioner, Mangla Dam is a very important office, so is the office of the Chairman of the Mirpur Development Authority. The Commissioner of the Mangla Dam has gained importance in view of upraising of the Mangla Dam Project. Parties belong to the same city and being in contact with each other in view of the proceedings initiated by the respondents, leave no room to doubt that appellant was in know of the appointment and the manner of appointment of the respondent, but challenged the same after the report was made against him. He challenged his appointment after the respondent made report against him on the basis of which an inquiry is set in motion and he is ostensively under the apprehension of losing the landed property, if the mutations of the "Shamilat Deh" land transferred in excess of his share are cancelled.
11. Reports against him are accepted by the appellant. Irrespective of the fact whether these reports have caused any harm or loss to the appellant or not, the fact of the matter is that reports are made against him, and if accepted, these-would definitely cause harm as well as loss of property and reputation to him. Hence, petition in this background cannot be said to be without malice.
12. I may refer here the case reported as Syed Manzoor Hussain Gilani v. Sain Mullah, Advocate and 2 others PLD 1993 SC (AJ&K) 12, wherein it is held that laches is not strictly applicable to a case of quo warranto but if mala fide is pleaded in defence, it is definitely a relevant consideration. A relator must show the invasion of his personal right, where there is a plea of mala fide despite the fact that writ of quo warranto may be sought even by a person who has no personal interest in the matter.
13. In the case reported as Dr. Kamal Hussain and 7 others v. Muhammad Sirajul Islam and others PLD 1969 SC 42; it is held that, "grant of relief in writ jurisdiction is a matter of discretion wherein it is a quite legitimate on the part of the High Court to test the bona fide of the relator to see if he has come with clean hands. A writ of quo warranto in particular is not to issue as a matter of course on sheer technicalities on a doctrinaire approach.
14. There is no doubt that laches is no ground to throw out a writ of quo warranto when the office is being usurped by a person not entitled to hold the office under law and it is a continuing wrong.
However, it becomes relevant, and in fact most relevant, when the relator's conduct is not above board and he appears being activated by malice. The Courts have never favoured a relator invoking the jurisdiction of the Court with mala fide conduct.
15. As far the other arguments particularly the arguments based on section 13(1) of the Civil Servants Act, 1976 coupled with the different notifications of the Government imposing complete ban on the reemployment after 63 yeas is concerned, it is left open to be decided in some other case, as the petition before the High Court was not, and appeal before this Court, is equally not maintainable in view of the above stated reasons. The authorities of law referred to by the learned Advocate for the appellant are, therefore, equally inapplicable as they relate to the points of law which are not decided by the High Court and this Court also leaves it open to be decided in some other appropriate case when raised by a bona fide relator.
' In view of above, finding no force in this appeal, it is hereby dismissed with costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.