' MUHAMMAD AZAM KHAN, C.J.---The captioned appeal with the leave of the Court arises out of the order of the High Court dated 12th March, 2012, whereby Writ Petition No,516 of 2012, filed by respondents No,1 to 4 herein, has been disposed of with the direction that the Government shall advertise the posts forthwith and fill the same within a period of three months. It was also ordered that till then petitioners (respondents herein) shall not be disturbed.
2. Sardar Muhammad Resham Khan, Additional Advocate-General, the learned counsel for the appellants, argued that the order of the High Court is against law and not maintainable. Before passing the impugned order, the learned Chief Justice in the High Court neither admitted the writ petition for regular hearing nor summoned the appellants herein for filing written statement/objections, therefore, the appellants have been condemned unheard. The impugned order is clearly against the AJ&K High Court Procedure Rules, 1984. The learned counsel contended that the respondents were appointed as Section Officers on ad hoc basis on 31-12-2005, 2-5-2006, 9-5-2006 and 28-5-2006 respectively and the period of their ad hoc appointment was extended from time to time. Ultimately the ad hoc appointments were not further extended and they were relieved after the expiry of ad hoc period on 20th March, 2012. The learned counsel referred to a case reported as Azad Govt. And others v. Sardar Muhammad Ashfaq Khan (2001 M LD 514). He contended that the respondents are no more in service. The requisite direction cannot be issued.
3. While controverting the arguments, Barrister Humayun Nawaz, the learned counsel for respondents Nos.1 to 4, argued that the order dated 20th March, 2012 is mala fide because the appellants have re-advertised the posts. They want to appoint someone of their favourites on ad hoc basis. The learned counsel argued that under Rule 3 of the Institution of Petitions and Grant of Writ Rules, 1975, the High Court can pass any order at preliminary stage. It is not necessary to admit the writ petition for regular hearing.
4. Sardar Muhammad Resham Khan brought on record the copies of two requisitions sent by the Services and General Administration Department to Public Service Commission and Director, General Information for publication of advertisement in the Press for the posts of Section Officers on regular and ad hoc basis.
5. We have heard the learned counsel for the parties and perused the record. A perusal of order passed by the High Court on 12th March, 2012 shows that the writ petition was fixed for preliminary arguments on 12th March, 2012. After hearing the preliminary arguments of the counsel for the petitioners (respondents . Herein), the learned Chief Justice in the High Court without admitting the writ petition for regular hearing, summoning the non-petitioners (appellants herein), affording them an opportunity of filing objections/written statement and hearing ,them finally disposed of the same and issued directions to the Government that it shall advertise the posts and fill the same within a period of three months on permanent basis. It was also .Ordered that the petitioners (respondents herein) shall not be disturbed from the posts they are holding at present for such period.
6. Writs of mandamus, prohibition, certiorari, habeas corpus and quo-warranto are filed under section. 44 of the AJ&K Interim Constitution Act, 1974 (hereinafter to be referred as the Act). Under section 44-A of the Act, the High Court may, with the previous sanction of the Government, make rules regulating the practice and procedure of the Court The rules were framed on 15th July, 1984 which are called as the AJ&K High Court, Procedure Rules, 1984. Chapter VII of the High Court Procedure Rules deals with-the applications for enforcement of fundamental rights. Prior to enforcement of High Court Procedure Rules. The Institution of Petitions and Grant of Writ Rules, 1975 (hereinafter to be referred as the. Writ Rules 1975) were framed by the High Court under section 52 of the AJ&K Courts and Laws Code, 1949 after approval by the Government.
7. The Writ Rules 1975 provide a scheme for institution of writ petitions. Under rule 3, an application for enforcement of fundamental rights has to be laid before a Division Bench unless otherwise ordered by the Chief Justice and the Division Bench is empowered to dismiss it summarily or pass such order as it may deem necessary. Under rule 4, the notice of application has to be served on all parties directly affected and for the purpose, the applicant has to file as many authenticated copies of applications and affidavits as there are parties. There is also a proviso to this rule that any person who deserves to be heard at the hearing in opposition to the application and appears to the Court to be a proper person can be allowed to be heard. Under Rule 6, a notice is to be served upon the respondents requiring them to file written statement/counter affidavit, if any, along with the documents on which they rely at least seven days before the hearing. The scheme of Writ Rules, 1975 is unambiguous. Combined study of rules 3, 4 and 6 shows that whenever a writ petition is placed before a Division Bench or a single bench, it may be dismissed summarily and if it is not dismissed summarily, then the Court shall issue a notice to the respondents and require them to file written statements, counter affidavits, if any, and other documents on which they rely.
The argument of the counsel for the respondents that under Rule 3 it is not necessary that the writ petition be admitted for regular hearing is against the scheme of rules.
8. Part B of Chapter VII of High Court Procedure Rules, 1984 deals with the writs of mandamus, prohibition, certiorari, habeas corpus and quo-warranto. Rule 33 provides a complete scheme for initial orders on the writ petitions. We deem it proper to reproduce Rule 33 which is as under:-- "(1) Every such application shall be placed for admission before a Division Bench to be constituted by the Chief Justice as far as practicable on the next working day or if so directed by the Chief Justice on the day on which it is filed and after its admission shall ordinarily be heard by a Judge sitting alone unless the bench admitting the petition directs otherwise.
(2) Notwithstanding anything herein before contained the Chief Justice may, if he deems necessary authorize a Judge sitting alone to hear such petition for admission.
(3) A Bench hearing a petition for admission may before admitting the same direct issuance of notice to the party affected to show cause why the petition be not admitted and may fix a date on which the notice is to be returnable. After service of the notice mentioned above, the petition shall be placed for admission before any Bench constituted by the Chief Justice. .
(4) What transpires from rule 33 is that every application shall be placed. Before the Division Bench, unless otherwise ordered by the Chief Justice, for admission. The rule further postulates that if writ petition is admitted for regular hearing it shall be heard by a Judge sitting alone unless the Bench admitting the petition directs otherwise. The language of the rule leaves no room for the argument that the writ petition can be accepted and final order can be passed without admitting it for regular hearing. It is also laid down in sub-rule (3) of Rule 33 that a Bench hearing a petition may before admitting the same direct issuance of notice to the party affected to show cause why the petition may not be admitted for regular hearing. It further elaborates that the admission of writ petition for regular hearing is necessary. Under Rule 35 notice of motion has to be served upon the person to, be affected or any other respondent by registered post (acknowledgement). Under Rule 36, after a notice is served upon the person affected and he appears in the Court, he shall file objections and other documents along with at least two copies thereof within a month from the date of appearance unless the Court otherwise directs. When the objections are filed by the respondent, the petitioner may, with the leave of the Court, file an affidavit and any document in rejoinder along with at least two copies thereof within a week or such time as the Court may direct and serve a copy thereof on the respondent or his counsel. Under Rule 38, the writ petition has to be finally decided after hearing the parties. What is evident from the above referred rules is that when a writ petition is filed it shall be placed before a Bench. If it is not dismissed summarily and the Bench admits it for regular hearing then a notice shall issue to other party, who shall be required to file counter affidavit, documents, objections/ written statements. The petitioner, if so desires, with the permission of the Court may file an affidavit and any document in rejoinder. After hearing the parties the Court may pass any appropriate order on the writ petition. The final disposal of writ petition without admitting it for regular hearing is not covered by the rules. The proposition came under consideration of this Court in a case titled Azad Govt. And others v. Sardar Muhammad Ashfaq Khan 2001 M LD 514 wherein it was observed as under:-- ' After hearing the respective contentions of the learned counsel for the parties mid perusing the record, it may be stated that the learned Judge in the High Court committed a patent error by accepting the writ petition filed by respondent without even admitting the same for regular hearing. The perusal of the interim orders recorded by the High Court shows it beyond any doubt that the writ petition filed by respondent was not admitted for regular hearing and as such the subsequent proceedings on the assumption that the same had been admitted for regular hearing are not sustainable on the said sole ground."
' We may observe here that before the enforcement of Azad Jammu and Kashmir High Court Procedure Rules, 1984, made under section 44-A of the AJ&K Interim Constitution Act, 1974 and section 52 of the AJ&K Courts and Laws Code, 1949, "The Institution of Petitions and Grant of Writ Rules, 1975" were applicable: The scheme of procedure laid down in Rule 3 of the Writ Rules, 1975 is akin to that of Rules 32 to 38 of the High Court Procedure Rules, 1984 relating to writ petitions. There is no conflict between the two rules. Writ Rules, 1975 were framed under section 52 of the Courts and Laws Code, 1949while the AJ&K High Court Procedure Rules, 1984 were. Framed under section 44-A of the Act and section 52 of the Courts and Laws Code, 1949. It is a celebrated principle of law that if there is a conflict between two provisions of law, then the later provision shall prevail, but in the instant case mere is no conflict in both the rules. Since the High Court Procedure Rules, 1984 provide a complete mechanism and these are framed tinder the Constitution, the writs shall be governed by the Rules framed under the provisions of the Act. Since the High Court has finally disposed of the writ petition, without admitting it for regular hearing, without summoning the respondents (appellants herein), without requiring them to file objections/written statements or counter affidavits and hearing them, the impugned order is not sustainable on the sole ground.
9. The appellants claim that they had no knowledge of order of the High Court dated 12th March, 2012 that the respondents shall not be disturbed from the posts they are holding till the induction on regular basis within three months. Since they were not in knowledge of fact, the period of ad hoc appointment of the respondents was not extended and they were relieved of the posts on 20th March, 2012. Keeping in view this position the order of High Court was suspended at the time of hearing the stay order application. The period of three months was fixed on 12th March 2012, which is going to be expired on 11th June, 2012 and the department has sent requisition to Public Service Commission for filling in the post on regular basis. The requisition was sent on 20th April, 2012.
During the pendency of said requisition, the appellants have also issued advertisement for filling the posts on ad hoc basis which is the requirement of rules.
10. We should have remanded the case to the High Court for decision, but before the intimation of order to the appellants, the respondents herein, had already been relieved of the posts. The High Court has ordered that non-petitioners shall fill the posts within three months and the petitioners (respondents herein) shall not be relieved. The appellants have already advertised the posts for filling the same on regular and ad hoc basis, therefore, it will be an exercise in futility to remand the case. The appeal is therefore accepted. The order passed by the High Court dated 12th E March, 2012 is set aside with no order as to costs.