1. ' RAFIULLAH SULTANI, J . --- This writ petition is addressed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act 1974, seeking direction to the non-petitioners to restrain them from conducting fresh written test for the post of Officer Grade III.
2. ' Through this order the application for injunction dated 11-6-2007 shall be decided.
3. ' Brief facts of the case are that the petitioner filed a writ petition before this Court on 11-6-2007. She has pleaded in the writ petition that Human Resources Division of the Bank of Azad Jammu and Kashmir advertised various posts of Grade-III Officer wherein applications are invited from desirous qualified candidates for appointments. The petitioner having qualification for appointment applied accordingly among others and written test was conducted on 22-4-2007. As per result compiled by the non-petitioners, the petitioner not only qualified the written test but also stood in top position. The non-petitioners instead of holding interview of the candidates who have qualified written test according to procedure decided to conduct fresh written test in this regard with mala fide intention and a letter was also written to the petitioner among others to appear for fresh written test on 12-6-2007. Feeling aggrieved by the letter dated 5-6-2007, (issued by the Azad Jammu and Kashmir Bank), the petitioner having no other alternate remedy but to invoke the extraordinary writ jurisdiction of this Court seeking a direction against non-petitioners to prohibit from conducting fresh written test for the posts of grade III. The petitioner also seeks direction to the non-petitioners to provide copy of rules to her and otherwise frame the rules for the purpose of regulating the mode of appointment in the service of the bank.
4. ' An application for interim relief was also moved by the petitioner on 11-6-2007 and on that application it was ordered to the non-petitioners to maintain status quo till further order subject to objections. The non-petitioners submitted objections on the application for interim relief dated 12- 6-2007 and also moved another application for early hearing. The date was fixed for further proceeding on 3-9-2007, but after application for early hearing, the case was fixed for arguments on the application for interim relief on 28-6-2007. On 28-6-2007, the arguments could not be heard and the case was adjourned for arguments on 29-6-2007. On the said date, the arguments on the application for interim relief was heard and order was reserved.
5. ' Mr. Muhammad Idrees Mughal, the learned counsel for the non-petitioners, argued that this writ petition is not maintainable in the eye of law. He argued that the Bank of Azad Kashmir is established in Azad Kashmir in 2005 and Civil Servants Act shall not apply on it. He further argued that other six candidates are ready to participate in fresh written test and the petitioner in her personal capacity denying to participate in it. He further contended that for assessment of merit, honestly and to choose honest candidates the bank executives are conducting fresh written test.
6. He referred pages 3 and 5 of the writ and argued that it is not supporting version of the petitioner.
7. He further contended that the ingredients of injunction are not in favour of the petitioner and prima facie there is no good and arguable case of the petitioner. He also argued that the bank executives are conducting fresh written test only to the extent of 7 candidates. In support of his version, he relied upon case-laws 2001 PTD 1538, 1998 SCR 315, and PLD 1975 SC 244.
8. ' In reply, the learned counsel for the petitioner reiterated the grounds of the writ petition and argued that according to section 28 rules have not been framed by the bank/board. He further argued that the petitioner is aggrieved person according to law and she has proved her right. He further argued that proceeding of the bank executives to conduct fresh written test hits section 415 of fundamental rights. He also contended that in the same circumstances different order cannot be given. Different order can be given in 'different circumstances. He further contended that the executives are cancelling the examination to the extent of only 7 candidates including the petitioner which is against the fundamental rights. He also contended that law of Estoppel applies in this case. He further argued that ingredients of injunction are in her favour and she will face irreparable loss if the injunction is refused or cancelled. He referred case-laws in support of his version: PLD 1983 (AJ&K) 10, 1995 SCR 166, 2005 SCR 89, 1999 PLC (C.S.) 197 and 2000 MLD 1640.
9. Lastly, he prayed to maintain the status quo order till the disposal of this writ petition.
10. ' I have heard the learned counsel for the parties and gone through the record carefully.
11. ' In case of injunction there are three ingredients according to Order XXXIX, rules 1 and 2 of C.P.C. (1) prima facie good case; (2) balance of convenience lying in favour of grant of injunction and (3) plaintiff would suffer irreparable loss if the injunction is refused/vacated.
12. ' According to law prima facie means at first sight, on the face of a thing, apparently, presumably true unless rebutted by some convincing evidence. A case in which some evidence is present in support of the allegation made in it and which if unrebutted will be sufficient proof of the allegation.
13. In case-law PLD 1962 Kar. 59, it has been defined the word prima facie as follows: "In deciding the question whether a temporary. Injunction should be issued or not, the Court has only to determine whether there is a serious question to be tried in the suit and not how the question ought to be decided at the trial". In case-law 1992 CLC 2540 prima facie case was defined as follows: "Prima facie case would not imply on indefeasible case, but would signify only an arguable case, involving serious or substantial question of fact and law, which on proceeding to trial was capable of and had a possibility of success".
14. ' In the light of definition of word prima facie mentioned above in case-law, I see in this case either petitioner has good prima facie case or not? It is admitted on the file as Annexure "B" that the Bank of Kashmir advertised various posts of Grade-III Officers and applications were invited from the qualified candidates for these posts. It is also admitted that for the appointments for the posts of Grade-III Officers written test has been conducted by the Bank of Kashmir on 22-4-2007 at Muzaffarabad. It is also admitted on the file that the petitioner participated in written test conducted by the bank. It is also on the record that the petitioner not only qualified the written test but also stood in top' position, detailed marks sheet is at page 9 of the file as Annexure "A/4". Non- petitioners, instead of holding interview of the candidates who have qualified the written test and make appointments, decided to conduct fresh written test and a letter was written to the petitioner among others to appear for fresh written test on 12-6-2007. Attested copy of the letter is on the file as Annexure "C" at page 12. The version of the learned counsel for the non-petitioners that fresh written test is being conducted by the bank to judge the ability of the candidates and it is necessary for appointment. Firstly, this condition is not available in advertisement published by the bank which is available at page 10 of the file as Annexure "B". Secondly, if re-written test is for judging the ability of the candidates then what was the purpose of written test which had been conducted by the bank on 22-4-2007. It is interesting matter that the bank is conducting fresh written test only to the extent of 7 candidates out of 451 candidates. This act of the bank will be discriminatory for the petitioner. If first written test has not been conducted properly by the bank, then it is the fault of the bank not fault of the petitioner. After conducting the written test and announcing the result of candidates now the bank executives want to conduct fresh written test. It is well settled principle of law that no one can be punished for an act of the executive, judicial or quasi judicial authority. The non-petitioners have conducted written test for appointments of Grade-III Officers and the petitioner has passed the written test and stood in top position. After announcing the result of written test which was conducted by the bank, prima facie, the bank has waived its right for fresh written test. It is against the principle of justice and law to conduct fresh written test from only 7 candidates. The version, argued by the learned counsel for the non- petitioners that except the petitioner remaining six candidates are ready to appear in fresh written test, is not valid ground for cancellation/vacation of status quo order and nor it binds the petitioner to appear in fresh written test. During the arguments, the rules for the purpose of regulating the mode of appointments in the service of bank has not been produced before the Court by the learned counsel for the non-petitioners nor appended with parawise comments for guiding the Court. In this case, if the injunction is refused, then it tantamounts to defeat the object of the writ.
15. This point of view gets support from case-law 1997 CLC 962. Another case which is at page 302 at 1997 CLC, it was held as follows: "Court may, in a fit case, grant interim injunction, even if the case does not fall within the four corners of the well settled principles for grant of injunctions under Order XXXIX, rules 1 and 2, if the facts of the case so demand to foster the cause of justice".
16. ' It has been noticed that during the arguments advanced by the learned counsel for the parties pertaining to the merits of the case and touched the core issues involved therein. That stage has not yet come in this case where a decision is to be rendered on merit of the case. However, taking into consideration the principles for grant of an injunction i,e, (i) prima facie of case (ii) balance of convenience and (iii) irreparable loss. All these three ingredients of injunction are in favour of the petitioner/applicant.
17. ' For the reasons listed above, the status quo .Order issued by this Court on 12-6-2007 in this case shall be remained intact till the final disposal of this writ petition. 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.