' MUHAMMED AZAM KHAN, C.J.--- This appeal with leave of the Court arises out of an order passed by the High Court on 17-6-2009, whereby while seeking para-wise comments on the writ petition, the ex parte stay order has been issued.
2. Facts necessary for disposal of the appeal are that appellant was serving as Revenue Officer, (B- 17) in the Electricity Department. He was promoted against the post of Deputy Director Commercial, (B-18) on the recommendations of Selection Board w,e,f, 10-12-2004. The order was issued on 5-5- 2006. One Sardar Muhammad Khurshid Khan, Director Commercial retired and on his retirement a proposal was forwarded by the Secretary Electricity Department for appointment of Tariq Mehmood Executive Engineer, as Director (B-19) and the appellant was to be posted as Director Commercial. Electricity Department, Muzaffarabad, on current charge basis on 8-5-2009. A writ petition was filed on behalf of on Kh. Farooq Ahmed belonging to Engineering cadre of the Electricity Department in the High Court wherein the appellant was not impleaded as party seeking direction from the High Court for his appointment as Director B-19. Along with the writ petition he filed an application for issuance of stay order. The learned Single Judge in the High Court issued the status quo order on 17-6-2009. On the basis of said stay order, the proposal submitted by the Secretary Electricity Department was not acted upon. On filing of PLA, this Court suspended the order of the High Court on 31-8-2009. After the order of this Court respondent No,1, Muhammad Arif, filed another writ petitioner on the same facts in the High Court. A learned Single Judge in the High Court ordered for maintenance of status quo after seeking para-wise comments on 7-9-2009, hence this appeal.
3. Sardar Muhammad Azam Khan, Advocate, counsel for the appellant argued that prior to this rit petition, a writ petition was filed by Kh. Farooq Ahmed on the same facts and law points and the High Court issued status quo order. This Court on filing of petition for leave to appeal, suspended status quo order issued in the said writ petition. Now the present respondent No,1 has filed a writ petition on similar facts. A learned Single Judge in the High Court sought Parawise comments from the respondents and issued status quo order. He contended that the order of the High Court has been passed a mechanical manner without considering the facts of the case, without applying the mind. He drew our attention towards impugned order and argued that the facts of the case are not narrated in the order. The Court has not considered necessary ingredients for issuance of stay order as postulated in Order XXXIX, Rules 1 and 2 of the Civil Procedure Code, i,e, prima facie case, irreparable loss and balance of convenience. He further argued that the learned Judge in the High Court has not looked into the provisions of rule 34 of the AJ&K High Court Procedure Rules, 1984. The requirements of rule 34 have not been fulfilled nor has the operation of rule 34 been suspended. He argued that the appellant belongs to Revenue wing of Electricity Department while respondent No,1, who filed the writ petition in the High Court, is Executive Engineer in the Electricity Department belonging to Power Wing. Under the AJ&K Electricity Department Rules, 1993 a Superintending Engineer can be appointed as Director Commercial by transfer and an Executive Engineer cannot be appointed as Director Commercial, hence the writ petition was not maintainable. Lastly he argued that the matter pertains to terms and conditions of service of civil servants and under section 47 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 only Service Tribunal has jurisdiction to adjudicate the matter and writ petition is not competent.
4. We have heard the ex parte arguments of the learned counsel for the appellant and perused the record. It is an admitted position that the appellant was serving as Deputy Director Commercial in the Electricity Department. On 8-5-2009, a summary was submitted by the Secretary Electricity to the Government for transfer of Tariq Mehmood Malik Director Commercial (B-19) as Director CM&O, Electricity Department Mirpur and the appellant, who is the senior-most in his cadre, is recommended for appointment as Director Commercial (Electricity) Muzaffarabad on current charge basis. This order was challenged by one Kh. Farooq Ahmed, Executive Engineer, Electricity Department through a writ petition. The High Court issued the status quo order. On petition for leave to appeal, this Court suspended the stay order whereupon another writ petition was filed by respondent No,1 in the High Court. A learned Single Judge in the High Court sought parawise comments from the respondents and ordered for maintaining status quo. It will be useful to reproduce the order passed by the High Court, which reads as under:--- "A copy of the petition shall be sent to the respondents for parawise comments upon the petition.
To come up on 15-10-09.
' There is also an application for interim relief, which is supported by an affidavit. It is stated in the application that the respondents are going to promote the private respondent in violation of the rules. I would like to have objections of the respondents upon this application. They are accordingly directed. Till then status quo prevailing at the moment shall be maintained."
' A perusal of the order reveals that the learned Single Judge in the High Court sought parawise comments and issues the status quo A order without fulfilling the requirements of the High Court Procedure Rules. This Court in a number of cases has time and again held that issuance of stay order without admitting the writ petition for regular hearing is not a good and healthy practice. The requirement of High Court Procedure Rules is to be fulfilled before passing stay order on stay order application. Rule 34 of the High Court Procedure Rules postulates that before passing any order on stay order application, the High Court shall issue a seven days' clear notice to the other party or dispense with the requirements of Rule 34. In the case titled Dr. Muhammad Ejaz Ahmed v. Dr. Maqbool Ahmed and others (Civil Appeal No,187 of 2009, decided on 5-6-2012) while placing reliance on another judgment of this Court recorded in the case reported as Raja Muhammad Asghar Khan v. Muhammad Hafizullah and 5 others 2001 M LD 224 it was observed that provisions of Rule 34 of the High Court Procedure Rules require that a notice be issued to the respondents before passing any interim order the writ petition. The relevant observation iS as under:--- "Rule 34 of the Azad Jammu and Kashmir High Court Procedure. Rules, 1984 postulates that a clear seven days' notice be issued to the other party before issuing order and if in the opinion of the High Court the matter is one of urgent nature and delay in serving the notice will be detrimental to the interest of the petitioner and very purpose of filing writ petition will be defeated, then the High Court can dispense with the requirement of Rule 34 of the High Court Procedure Rules and issue ex parte stay order. This Court in a number of cases has held that the provisions of rule 34 of the High Court Procedure Rules require that a notice be issued to the respondents before passing any interim order in writ petition. In a case reported as Raja Muhammad Asghar Khan v. Muhammad Hafizullah and 5 others 2001 M LD 224 this Court observed as under:--- "While issuing, the stay order the High Court violated rule 34 of the High Court Procedure Rules which requires that a notice be issued to the respondents before passing any interim order in a writ petition, but no such notice was given to the appellants before stopping his promotion. The said rule creates an exception in cases of emergent nature by laying down that the requirement of issuing notice to the respondents may be dispensed with but the High Court did not relax the rule before passing the order."
' Similarly in the case titled Faisal Ameen v. Mr. Ghulam Hussain Awan and others (Civil Appeal No,71 of 2011 decided on 23-10-2012), the same view has been reiterated, while observing as under:--- ".... The learned Single Judge in the High Court suspended the operation of Notification dated 25th March, 2011 without serving notice upon the appellant, herein, as laid down in Rule 34 of the High Court Procedure Rules. It appears that requirements of High Court Procedure Rules were not fulfilled. No notice was issued nor the operation of Rule 34 was dispensed with. It also appears from the record that the learned Judge in the High Court failed to consider the necessary ingredients for issuance of stay order i,e, prima facie arguable case, balance of convenience and irreparable loss.
The order appears to be bad in law. It may be stated that the provisions of Rule 34 of the High Court Procedure Rules are mandatory in nature. An order passed without compliance of the provision is bad in law "
In the present case the High Court has issued the status quo order without fulfilling the requirements of Rule 34 of the High Court B Procedure Rules, therefore, the Order is against the provisions of the High Court Procedure Rules.
' There is another aspect of the case that while issuing the stay order the High Court has not considered necessary ingredients for issuance of stay order i,e, prima facie case, balance of convenience and irreparably loss, as postulated in Order XXXIX, Rules 1 & 2 of the Civil Procedure Code. Without fulfilling the requirements of this provision, the order is bad in law and not maintainable.
' The result of the above discussion is that this appeal is accepted.
' The order passed by the High Court on 7-9-2009 for maintaining status ID quo is set aside. No order as to the costs.