' SYED MANZOOR HUSSAIN GILANI, J.---This appeal with leave of the Court is filed against an order passed by a learned single Judge of the High Court on 30-1-2006 at Mirpur in writ petition No,133 of 2005.
2. It is the second round of litigation through the same Advocate by a different relater against the same respondents. The first appeal was dismissed by the Supreme Court on 18-4-2005, which was filed by one Ch. Farman Ali, who is now dead.
3. The facts leading to the filing of the present appeal are that respondent No,1 (hereinafter to be referred as respondent), who retired as Chief Engineer of the Azad Jammu and Kashmir Public Works Department on 1-2-2002, was re-employed from the date of superannuation and the terms and conditions of his service were determined vide notification dated 25-8-2000. The re- employment of the respondent was extended through another notification dated 11-10-2001 for a further period of two years, which expired on 1-1-2004. In the meantime the respondent was appointed as Commissioner Mangla Dam Affairs on 14-7-2003 and his period of appointment was extended for two years vide notification dated 15-7-2005. The appointment of the respondent was challenged by the appellant on the ground that a retired employee could not be retained in the Government service after attaining the age of superannuation, whereas the respondent has crossed 65 years of age, which is a violation of section 13 of the Azad Jammu and Kashmir Civil Servants Act, 1976 and Government notifications dated 16-5-1993 and 20-3-2001. It was alleged that the respondent is usurping the public office of Commissioner Mangla Dam Affairs.
4. The respondents controverted the case before the High Court on several legal and preliminary objections regarding the maintainability of writ petition and now appeal. For the purpose of brevity we would confine ourselves to the preliminary objection, as we feel persuaded to believe that the petition before the High Court was based on malice and appeal is a continuation thereof.
Preliminary objection raised by the respondents is that a petition based on similar facts, law and grounds earlier filed by one Ch. Farman Ali, who is now dead, was dismissed by A the High Court and a fresh petition is filed through the present appellant by the same Advocate on the behest of deceased petitioner reproducing in verbatim contents and allegations raised in the earlier petition which stand already decided and closed. Only difference we found on perusal is that in this case an order issued in continuation of the earlier orders on 15-7-2005, through which a further period of two years is extended, is assailed along with earlier notifications issued in this behalf. Except this, rest of the contents, grounds and language of the petition/appeal are the same, which has been concluded by the Supreme Court in earlier round of litigation through the judgment dated 18-4- 2005.
5. The learned Advocates for the parties argued the case at length on merits as well as preliminary objections.
6. Raising preliminary objection the learned Advocate for the respondents contended that the appellant is not fighting for supremacy of law but is acting as a stooge for a person who earlier failed. According to the learned Advocate, after dismissal of the petition and appeal, Ch. Farman Ali, staged the present appellant to fight his battle through the same Advocate, who earlier represented the deceased Ch. Farman Ali. He contended that a writ of quo warranto cannot be issued on the behest of a relater whose credentials are dubious and mala fide. According to him, the quo warranto cannot be issued as a matter of routine on sheer technicalities and in a doctrinaire approach. He relied upon several authorities of this Court as well as the Courts of Pakistan, reported as Syed Ali Raza Asad Abidi v. Ghulam Ishaq Khan, President of Pakistan another PLD 1991 Lah. 420, Syed Manzoor Hussain Gilani v. Sain Mullah, Advocate and 2 others PLD 1993 SC (AJ&K) 12, Muhammad Ashfaq Khan and 2 others v. AJ&K Government and 4 others 2004 SCR 260 and 1991 PLC (C.S) 407 (the page is misquoted, hence not traceable).
7. The learned Advocate for the appellant contended that the appellant is a respectable citizen of the State and has filed the petition with a bona fide intention for upholding the authority of law so that the authorities of the State function within the realm of law and nobody is allowed to usurp the public office in an illegal manner. He referred to the Civil Servants Act, Rules and policy of the Government is this behalf contending that the appointment/extension in the service of the respondent is in contravention of the law and appellant seeks to enforce these laws through the writ of the Court. He contended that the authorities of. Law cited by the learned Judge of the High Court for dismissing the petition does not apply in the case in hand as the facts of the present case are totally different from those on the basis of which the law in the referred cases is laid down. He placed reliance on the cases reported as Azad Govt. v. Israr Hussain Mughal 1996 SCR 278, Muhammad Naseer Jahangiri and 13 others v. Muhammad Sami Khan and another 1997 PLC (C.S)
1115, Faiz Akbar v. Mst. Nasim Begum and 8 others 2003 YLR 2729 and Habibullah Gannaie v.
Wajahat Rashid Baig and 3 others 1999 PLC (C.S) 615.
8. We have considered the arguments advanced at Bar and gone through the earlier record relating to the case.
9. We are astonished to note that except one order referred above, which is in continuation of, and an extended form of the earlier orders, rest of the contents of the appeal/petition are the same as were filed by late Ch. Farman Ali. Both the rounds of litigation were conducted by the present Advocate. The documents are drafted and stamps etc. Are also purchased in the name of the present Advocate, which implies that the Advocate has acted on behalf of late Ch. Farman Ali in the matter, in the second round of litigation as well. We cannot attribute the malice and hold that the Advocate has induced the present appellant to file the petition or the appeal, but are constrained to observe that the Advocate, who knew the facts and fate of the earlier case, finally settling the matter, again sought indulgence of the Court on the same facts and grounds through the present appellant. The etiquettes of the profession demand that once a matter is finally concluded by the apex Court in any case, when it was represented by the same Advocate, the same matter could not be again put to trial through another party by the same Advocate. Parties may not be knowing the procedural legalities of the case, but the Advocates, who are the officers of the Court and as good as the Judges themselves, are expected to behave and act in the similar manner in seeking the indulgence of the Courts as they expect of Judges to do. It was rightly observed in the case reported as Hakim Qureshi, President, District Bar Association, Lahore and 2 others v. The Judges of the Lahore High Court and another PLD 1976 SC 713 that there can be no gainsaying the fact that lawyers as officers of the Court should be as much interested to uphold the dignity and purity of Courts as the Judges themselves. In another case reported as E.S. Reddi v.
The Chief Secretary, Govt. Of A.P., and another 1087 PSC 1326 it was observed as follows:-- "By virtue of the pre-eminence which senior counsel enjoy in the profession, they not only carry greater responsibilities but they also act as a model to the junior members of the profession. A senior counsel more or less occupies a position akin to a Queen's counsel in England next after the Attorney General and the Solicitor General. It is an honour and privilege conferred on advocates of standing and experience by the Chief Justice and the Judges of the Supreme Court. They thus become leading counsel and take precedence on all counsel not having that rank. A senior counsel though he cannot draw up pleadings of the party, can nevertheless be engaged "to settle" i,e, to put the pleadings into "proper and satisfactory form" and hence a senior counsel setting pleadings has a more onerous responsibility as otherwise the blame for improper pleadings will be laid at his door."
10. The Advocate, even if approached by the present appellant himself, should have refrained from seeking indulgence of the Court on the basis of same facts which stood concluded by the Supreme Court. It is a professional duty of an Advocate under Bar Council Act and Rules to refrain from calling in question an action which stood concluded by the Court. Under Rule 154 of the Bar Council Rules, it is the duty of the Advocate not to accept employment to prosecute or defend a case for the purpose of harassing anyone nor shall he take or prosecute an appeal willfully motivated to harass anyone. Similarly under Rule 157 of the above-referred rules, no Advocate is obliged to act as advisor for any such person who may wish to become his client. He has right to decline the professional employment. This was one of the fittest cases in which the Advocate should have declined the petitioner to prosecute in the High Court as well as in the Supreme Court.v We deplore his professional conduct, however, refrain from passing any order striking him off from the role of the Court as there is nothing on record that he manoeuvred the appellant and invoked the jurisdiction of the Court as suggested by the respondents. However, we observed that he failed to decline to be the D Advocate of the appellant in view of the similarly concluded previous litigation and this was the fittest case in which the Advocate should have exhibited high degree of professional conduct.
11. It is placed on the record that the earlier writ petition filed by Ch. Farman Ali was publicised through newspapers throughout Azad Jammu and Kashmir. Its dismissal was also publicised.
Clippings of the newspapers are placed on record. If the appellant was so honest and of a bona fide conduct, interested in upholding the authority of law, he could have come to the Court on the day one when the respondent was first reemployed in the service in 2000-01 and then his appointment against the one post or the other was continuously extended and publicised throughout, and particularly notified by the Government. This fact alone is sufficient to hold that the appellant is not acting for himself but has been put as a stooge by late Ch. Farman Ali or somebody else and is not fighting as a bona fide relater. There is nothing on record that the appellant for the first time came to know of the orders on the date when he filed the petition in the High Court, neither can it be accepted in view of the vocal assertion of the petitioner that he is interested in upholding the authority of law and ensuring that nobody should usurp the public office.
12. In every writ of quo warranto the Court has first to satisfy itself about the conduct and motive of the relater. The writ of quo warranto cannot be issued as a matter of course on sheer technicalities as held in a E series of cases by this Court and the Courts of Pakistan. It is the discretionary relief and the Court has to scrutinize the petition as well as the conduct of the petitioner before passing any order. We may place reliance upon the cases reported as Dr. Kamal Hussain and 7 others v.
Muhammad Sirajul Islam and others PLD 1969 SC 42, Ch. Muhammad Anwar v. Ch. Muhammad Rashid PLD 1987 SC (AJ&K) 41, Sardar Muhammad Abdul Qayyum Khan v. Kh. Muhammad Amin Civil P.L.A. No,90 of 1991 and Syed Manzoor Hussain Gilani v. Sain Mullah, Advocate and 2 others PLD 1993 SC (AJ&K) 12.
13. Given the comparison of the earlier petition and appeal, and the present round of petition and appeal, there remains no doubt that the applicant is not a bona fide relater but is fighting a battle of someone else and tries to use the Court as a weapon.
14. We dismiss this appeal for the above stated reasons leaving the legality of points open to be decided in any future case of this nature on the petition of a bona fide relater. The appellant shall bear the costs of litigation and shall pay a special costs of Rs,50,000 to the respondent.
' The Misc. Application also stands disposed of accordingly.