' This petition for leave to appeal has been directed against the judgment passed by the High Court on 5th of April, 2004, whereby the writ petition filed by the petitioner, herein, was dismissed.
2. The precise facts, giving rise to the present petition for leave to appeal, are that Mrs. Shamim Khalid, respondent No,1, was appointed as Civil Judge on ad hoc basis by the Hon'ble Chief Justice of Azad Jammu and Khasmir High Court on the recommendations of the respective Selection Committee, vide notification, dated 23-11-2001. The post was subsequently advertised and among others respondent No,1 also appeared for permanent induction into the service before the Azad Jammu and Kahsmir Public Service Commission. It is alleged that two years legal practice was the condition precedent and the requirement of the rules as well as the advertisement, and respondent No,1 did not possess the same. It is also averred that the application of respondent No,1 should have been dismissed as it was done in case of one Qazi Abdul Shakoor but because of the influence of respondent No,1, her application was entertained. After completing the proceedings of selection, one Qazi Abdul Shakoor was declared successful against the quota of District Muzaffarabad but his recommendations were declared null and void by the High Court on 9-6- 2003 in a writ petition filed on behalf of respondent No,1, herein, and resultantly respondent No,1 was appointed as Civil 'Judge/Traffic Magistrate vide notification, dated 13-6-2003. The appointment of respondent No,1 as ad hoc Civil Judge as well as her permanent induction was challenged by filing a writ petition inter alia on the grounds:--
(i) that respondent was lacking the minimum qualification required for initial recruitment to the post of Civil Judge either at the time of her ad hoc appointment and on the last date of applications, as stated in the advertisement;
(ii) that respondents Nos.2 and 3, Selcaion Committee and Public Service Commission, have no jurisdiction to entertain the application of respondent No,1 either for ad hoc or for regular appointment, as she was not possessing the requisite qualification prescribed for direct recruitment, therefore, the entire proceedings were without any jurisdictional competence and violative of relevant law and rules;
(iii) that respondent concealed, her true qualification, therefore, was not entitled to seek the relief from this Court nor she is eligible to be appointed as Judicial Officer; and
(iv) that the petitioner came to know about the aforesaid lack of qualification of respondent after the judgment of the Supreme Court, therefore, the petition has been filed for upholding the supremacy and dignity of law.
3. The claim of the petitioner was repudiated by respondents by filing separate written statements.
In the written statement filed on behalf of Mrs. Shamim Khalid, it is stated that her appointment has been made as per direction of the High Court issued on 9-6-2003 and the present petition amounts to an appeal against the said judgment. The High Court has no jurisdiction to sit in appeal over its own judgment, therefore, the petition is not maintainable. It is also stated that the judgment of High Court was challenged before the Supreme Court and leave was refused by the apex Court on 5-9-2003. It was also alleged in the written statement that acceptance of the writ petition will amount to sit in appeal even over the judgment of the Supreme Court which is beyond the jurisdiction of the High Court. It is farther stated that orders of the Hon'ble Chief Justice cannot be challenged through writ jurisdiction, therefore, the writ petition entails dismissal on this sole ground. It is also averred that the petition has been filed with uiterior motives for the benefit of one Abdul Shakoor, who has lost his case in the earlier round of litigation. It is further alleged that the petitioner, herein, is not a bona fide relater and the petition has been filed with mala fide intent and purposes, hence the same merits dismissal. It has also been stated that the petition has been filed after an inordinate delay and the same was suffering from laches. The petitioner was fully aware of the notification, dated 23-11-2001, whereby the ad hoc appointment of respondent No,1 was made, as Mst. Farrakh Intisab, the wife of the petitioner, was also appointed as Civil Judge on ad hoc basis through the same notification. The appointment of respondent No,1 on ad hoc basis has been assailed after a considerable delay and even regular appointment has been challenged after a period of more than 4 months therefore unexplained delay coupled with malice is sufficient to hold that the petitioner is not a bona fide relater. It is also submitted that petitioner is guilty of suppression of the material facts from the Hon'ble Court that he himself appeared for appointment as Civil Judge along with respondent No,1 but could not qualify the test and interview and failed in getting the appointment. After having failed, the petitioner has come forward with writ of quo warranto against respondent No,1 which cannot be regarded as his bona fide action. It was also alleged in the written statement that although apparently the writ petition has been shown to be a writ of quo warranto but in essence it is the writ of certiorari seeking the cancellation of orders of appointment of respondent No,1 as ad hoc Civil Judge as well as permanent Civil Judge. The petitioner with his all cleverness has couched the writ petition in such a manner that apparently it seems to be a writ of quo warranto but the substance of the writ petition and the averments made in the writ petition show it beyond any manner of doubt that in fact it is a writ of certiorari. The moment the Court reaches the conclusion that the writ is fundamentally a writ of certiorari, then the question of laches becomes more important for which no reasonable explanation has been furnished by the petitioner.
4. The High Court vide its impugned order, dated 5th of April, 2004, has dismissed the writ petition filed by the petitioner on the grounds, mentioned at page 6 of its judgment, to which I would deal with brevity at a subsequent stage.
5. In support of petition, it was vehemently contended by Mr. Mujahid Hussain Naqvi, the learned counsel for the petitioner, that respondent No,1 did not hold the minimum qualification required for initial recruitment to the post of Civil Judge, therefore, her appointment on ad hoc as well as on regular basis is, without any lawful authority. The learned counsel strenuously contended that according to the Azad Jammu and Kashmir Judicial Service Rules, 1999, the required qualification for the appointment of Civil Judge is Law Graduate with at least two years legal practice as an advocate. The respondent No,1, according to the learned counsel for the petitioner, was enrolled as an Advocate on 25-1-2000, therefore, at the time of her ad hoc appointment her legal practice was only one year and nine months and some days. The learned counsel urged that it was enjoined upon the Public Service Commission to reject her application as was done in the case of Abdul Shakoor and the acceptance of her application by Public Service Commission was an act which was without lawful authority. When the learned counsel was confronted with the situation as to whether any candidate objected to her disqualification, he could not reply satisfactorily. Instead he contended that it was a duty cast upon the Public Service Commission to find out by adopting some methods as to whether a candidate fulfils the requisite qualification or not. It was also contended by the learned Advocate that respondent No,1 also concealed her lack of qualification not only before the High Court but also before the Public Service Commission, therefore, was not entitled to be appointed against the post of Civil Judge. It was further stated that the petitioner came to know about the disqualification of respondent No,1 just soon after the judgment of the apex Court, therefore, the petitioner, according to the learned counsel, is a bona fide relater and the petition has been filed for upholding the dignity and supremacy of law. The learned counsel in support of his contentions placed reliance upon the following authorities:--
(1) Syed Manzoor Hussain Gillani v. Sain Mullah Advocate and 2 others (PLD 1993 SC (AJ&K) 12); (2)
Sardar Riaz Ahmed Khan v. Sardar Muhammad Abdul Rashid Khan and 6 others 2000 YLR 999; (3)
Muhammad Siddique, Advocate v. Farhat Ali Khan and another (PLD 1994 Lahore 183); and Abdul Shakoor v. Mrs. Shamim Khalid and others 2004 PLC (C.S.) 7.
6. In a case titled Syed Manzoor Hussain Gillani v. Sain Mullah Advocate and 2 others (PLD 1993 SC (AJ&K) 12; it was observed That laches is not strictly applicable to a case of quo warranto but if mala tide is pleaded in defence then it is definitely a relevant considerati311. Question of laches is relevant to test the bona fide of the relator. Delay in a case of quo warranto is considered as an important piece of evidence in support of plea of mala fide of the relator and it is specially so when the relator was not an aspirant to the office which he intends to get vacated and in absence of bona fide, writ of quo warranto must be refused on this sole ground. Relator must show 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.
7. In a case titled Sardar Riaz Ahmed Khan v. Sardar Muhammad Abdul Rashid Khan and 6 others 2000 YLR 999, it was held that doctrine of laches being not applicable to the writ of quo warranto, the High Court fell in error in applying doctrine of laches in the present case. Finding of fact of mala fide recorded by the High Court, also would not hold good inasmuch as if an aggrieved person files a writ petition, no valid objection could be taken thereto. Points urged in writ petition needed to be thoroughly examined and present case was a fit case in which writ petition should have been admitted.
8. In another case titled Muhammad Siddiquie, Advocate v. Farhat Ali Khan and another (PLD 1994 Lahore 183), it was observed that respondent, therein; had been appointed as Judicial Member of Income Tax Appellate Tribunal on the basis of his having been an Advocate of 10 years standing at bar. After a few years of practice the respondent went abroad and after coming back joined service. Thus the period during which he did not practice but remained on the roll of bar was not considered in the total period of 10 years, so he was consequently held not eligible for appointment as Member/Chairman of Income Tax Appellate Tribunal.
9. Controverting the arguments, raised by the learned counsel for the petitioner, Mr. Abdul Rashid Abbasi, the learned counsel appearing for respondent No,1, raised the following points:--
(i) that petitioner himself appeared as a candidate for appointment against the post of Civil Judge alongwith respondent No,1 but could not qualify the test/interview thus failed to get the appointment. This fact has been suppressed by the, petitioner in the writ petition before the High Court, therefore, the petitioner did not file the writ petition in the High Court with clean hands, hence his writ petition was rightly dismissed by the High Court;
(ii) that the petition has been filed for the benefit of Qazi Abdul Shakoor who remained unsuccessful in the earlier round of litigation, therefore, the petition is also liable to be rejected;
(iii) that the appointment of respondent No,1 as ad hoc Civil Judge was made on 23-11-2001 and permanent appointment has been made on 11-6-2003 while the writ petition has been filed in the High Court on 4-11-2003, therefore, in view of the laches coupled with malice the petition was rightly dismissed by the High Court;
(iv) that the appointment orders of respondent No,1, dated 23-11-2001 and 13-6-2001 passed by the Hon'ble Chief Justice of the High Court are immune from challenge, nor can be declared null and void in view of the bar- contained in subsection (5) of section 44 of. The Interim Constitution Act, 1974;
(v) that the appointment of respondent No,1 has been made on the direction of the High Court therefore, acceptance of the writ petition would have the effect to sit in appeal over the judgment of the High Court which is' not permissible by the Constitution;
(vi) that the judgment of the High Court, dated 9-6-2003 has been upheld by the Supreme Court of Azad Jammu and Kashmir vide its order, dated 5-9-2003. The challenge to the aforesaid judgment through writ petition will amount to assume appellate, jurisdiction over the judgment of the .Supreme Court which is beyond the jurisdiction of the High Court;
(vii) that filing of the writ petition has been manoeuvred by Qazi Abdul Shakoor and considering the over all aspects of the case it becomes crystal clear that petition was filed with mala fide intents and purposes and the petitioner is not a bona fide relator; and (viii)that the petition has been filed on the misconception of law and facts that experience as Civil Judge cannot be counted towards the legal practice. The respondent No,1 is even otherwise qualified for the appointment after counting her legal experience towards her legal practice.
' The learned counsel for respondent No,1 placed reliance upon the following authorities:-
(1) Dr. Kamal Hussain and 7 others v. Muhammad Sirajul Islam and others (PLD 1969 SC 42); (2)
Azad Government and others v. Haji Sumandar Khan and others 1995 MLD 1350; (3) Abdul Shakoor v. Azad Government of the State of Jammu and Kashmir and others 2004 PLC (C.S.) 208; (4) Syed Manzoor Hussain Gillani v. Sain Mullah Advocate and 2 others (PLD 1993 SC (AJ&K) 12); and (5)
Board of Intermediate and Secondary Education, Mirpur through its Chairman v. Quaid College of Education for Elementary Teachers District Bhimber 2004 YLR 474.
10. Lastly it was also contended by the learned counsel for respondent No,1, that no writ can be issued against the High Court as provided under section 44 subsection (5) of the Interim Constitution Act because the person does not include the High Court. The learned counsel also pressed into service the submission that the conduct of relator is very much relevant in the writ jurisdiction because the relief in writ jurisdiction is discretionary in nature.
11. After hearing the respective contentions of the learned counsel for the parties and the perusal of the record with utmost care, it may be stated that the High Court dismissed the writ petition filed by the petitioner on a preliminary point which, according to it, goes to the root of the case. It was observed by the High Court that admittedly the petitioner, has also competed for the disputed post but remained unsuccessful. His role cannot be regarded as one for upholding the supremacy of law. I also endorse the similar view as expressed by the High Court that no question of law is involved in the present petition for leave to appeal and the same merits dismissal. The judgment of the High Court is unexceptionable in the circumstances of the case. It proceeds on the well-settled and time-honoured principle of law laid down and followed by all the Courts throughout the Subcontinent, that the petitioner who deliberately conceals or suppresses the material facts from the Court while filing a writ petition is not entitled to any relief and the writ petition is liable to dismissal on this sole ground, although he (petitioner) might be having a perfect case otherwise.
The present petitioner while filing writ petition in the High Court deliberately and purposely suppressed the fact that he had participated in the test/interview alongwith respondent No, 1 and had failed to qualify the same. When the learned counsel for the petitioner was confronted by the High Court with the aforesaid situation, he simply stated that in case of acceptance of writ petition, the petitioner undertakes not to participate in the fresh test and interview. This explanation is not sufficient for holding the . Petitioner a bona fide relator. Even otherwise no useful purpose will be served if the leave is granted to the petitioner because the order impugned by the petitioner in his writ petition before the High Court, dated 13th of June, 2003 regarding regular appointment of respondent No,1 as Sub-Judge had been issued. In compliance with and as a result of judgment of the High Court, dated 9th of June, 2003, reported as Abdul Shakoor v. Azad Government of the State of J&K and others 2004 PLC (C.S.) 208. The High Court could not sit in appeal over its own judgment and no writ could have been issued by the learned Single Judge in the High Court against his own judgment. The writ petition filed by the petitioner in the High Court is liable to dismissal for the aforesaid reason as well and the petition for leave to appeal is not maintainable which merits dismissal on this score too.
12. The jurisdiction conferred on the High Court under section 44 of the Azad Jammu and Kashmir Interim Constitution Act is discretionary in nature, therefore, the relief can be refused to a person who otherwise has a good case but whose conduct is dubious. This view lends support from Dr. Kamal Hussain's case (PLD 1969 SC 42), wherein the Supreme Court of Pakistan observed as under:-- "Under Article 98(2)(b) "any person and not necessarily an aggrieved person can seek redress from the High Court against the usurpation of a public office by a person who is allegedly holding it without lawful authority." On that account it cannot be doubted that Mr. Siraj-ul-Islam did have the locus standi to file the petition. But the grant of relief in writ jurisdiction is a matter of discretion, wherein it is quite legitimate on 'the part of the High Court to test the bona fides 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. In the present case, considering all the circumstances, I cannot escape the feeling that Mr. Siraj-ul-Islam is not entirely playing his own game, for high altruistic motives, and that he has instituted the writ petition not- so much for the vindication of any public right or the redress of a public wrong as to redeem the discomfiture of the defeated candidates, and to fight their battle on another front which some of them had already waged by the process of the election petitions within its limitations. The delay that has occurred in the filing of the petition which has not been satisfactorily explained is not without effect on the grant of this discretionary relief. The election of the appellants and the other members of the Council was duly notified on the 20th of December, 1966. They have been in office discharging their duties since, the 1st of January 1967. The writ petition in the High Court was filed 9 months later on the 12th of September, 1967. The alleged disqualification of the appellants and the two respondents which formed the main basis of the writ, was of an artificial and ephemeral character, which vanished on the date when those members took charge of their functions. They did not suffer from an inherent disqualification of any sort. In the circumstances I feel very strongly that it was not at all fit case for the issuance of a writ of quo warranto by the High Court. Mr. Khundker, the learned counsel for the respondents has also contended that since the High Court has exercised its discretion in favour of the respondents this Court should stay its hands and not interfere with that discretion. This Court does not and will not interfere where the High Court has exercised its discretion on sound judicial principles, but it will certainly intervene where it finds that the discretion has been exercised in a manner which diverts the law into wrong channels by the formation of conclusions which are unsustainable in law."
13. A reference may also be made to the case titled Board of Intermediate and Secondary Education Mirpur v. Quaid College of Education for Elementary Teachers District Bhimber 2004 YLR
474. The relevant observation is at page 43 of the report which is as under:- "(9).The contention raised by Ch. Muhammad Azam Khan, the learned counsel for the appellants, that examination fee was not deposited within time and the Quaid College was neither registered nor affiliated but all these facts were concealed, as such the discretionary relief could not have been granted in favour of respondent No,1, seems to be correct as the writ is always issued in favour of a person who comes in the Court with clean hands. Since respondent No,1 did not come in the High Court with clean hands, therefore, the Quaid College was not entitled to grant of any relief by issuing a writ in its favour."
' In view of the above stated reasons, finding no force in this petition for leave to appeal, the same stands dismissed in limine.