Ch. Muhammad Ibrahim Zia, J.--The -captioned appeal with the leave of the Court is filed against the judgment of the High Court dated 24.2.2010, whereby writ petition filed by the appellant has been dismissed in limine.
2. The brief facts forming back ground of the appeal are that the appellant, filed an application for appointment before the official respondents, in the year 2006. According to his version, Respondent No, 1 appointed him as Chowkidar on temporary basis vide older dated 1.7.2006. The appellant joined the job. According to appellant, Respondent No, 1 made proposal of his permanent appointment along with two others vide order dated 24.11.2007. In the meantime, certain posts including the post of Constable B-5 were advertised on 16.8.2008. The appellant and many others applied for the same but without conducting test and interview, the private-respondents have been appointed on 20.12.2008. The appellant challenged the orders dated 20.12.2008 through the writ petition before the High Court seeking direction for his appointment. The learned High Court, dismissed the writ petition in limine. The appellant has challenged the propriety of the judgment of the High Court through the instant appeal.
3. Ch. Muhammad Mehfooz Advocate, the learned counsel for the appellant, after brief narration of facts seriously challenged the impugned judgment on the ground that the same has been passed without application of judicial mind and appreciation of material, factual and legal propositions raised for adjudication. According to his version, the appellant, in his writ petition, specifically alleged that the respondents have violated the statutory rules. No merit list was prepared. He also referred to Para 5 of the writ petition wherein it is specifically alleged that without conducting test and interview, the appointments have been made. It is further asserted that the factual statement of the contents of the writ petition was supported by an affidavit. The respondents despite availing opportunity of filing preadmission comments, neither filed any counter affidavit nor furnished any copy of merit list or any other document to rebut the assertion of the appellant-petitioner. Thus, in this state of affairs, dismissal of writ petition in limine resulted into miscarriage of justice.
4. Conversely, Mr. M. Riaz Alam Advocate, the learned counsel for the respondents, forcefully defended the impugned judgment on the ground that it has been recorded in accordance with law. The appellant-petitioner has got no locus standi. He failed to appear in the test and interview, however, it is admitted that the respondents, neither filed any counter affidavit, nor any merit list or other document to contradict the stand of the appellant-petitioner has been brought on record. He finally submitted that the appeal being without any substance may be dismissed.
4-A In the light of the arguments of the parties, we have examined the record. The appellant, in memo of his writ petition brought on record the statements of facts that neither any test and interview was conducted nor any merit list was prepared. It is further averred that only on the basis of favouritism, some persons have been appointed who do not even fulfil the required qualification for the post. The statement of facts averred in the writ petition has been supported by an un- rebutted affidavit of the appellant. The respondent filed preadmission comments. Neither they have submitted with these comments, copy of merit list or any, other document supposed to be in their possession to rebut the factual statement of the appellant. Even the respondents have not filed Counter affidavit to rebut or deny the contents of the affidavit of the appellant Under the statutory provisions of Rule, 38 of the Azad Jammu and Kashmir High Court, Procedure Rules, 1984, ordinarily, the question arisen for determination in writ petitions have to be decided upon affidavits and documents. The High Court is also vested with the powers to issue direction that such question as it may consider necessary to be decided on such evidence and in such a manner as it deems fit and in that case it may follow such procedure and may pass such order as appears to be just.
Generally on the question of facts, un-rebutted affidavit is treated to be sufficient proof and this principle of law has been enunciated by this Court in so many cases one of which is the case titled Muhammad Sharif Khan us. Mirza Fazal Hussain & others, reported as [1993 SCR 88] wherein this Court has observed as under:-- "...We find that Muhammad Sharif while filing his writ petition duly filed an affidavit in support of the contents of the petition, meaning thereby that he claimed on oath that the disputed land was partly in his possession and also that the decree and the allotment chit mentioned above were in respect of the plot in dispute. The contents of this affidavit were not controverted by Fazal Hussain or other respondents before the High Court by filing a counter affidavit. Ordinarily, this is considered sufficient in a writ petition prima-facie, proof and if not rebutted by cogent evidence it becomes conclusive proof. This aspect of the matter was overlooked by the learned Judge in the High Court.
Apart from that the reasons on which the conclusion was drawn, as mentioned above, are also not sustainable."
Thus, in view of the facts of the instant case, respondents have neither filed any counter affidavit nor any document supposed to be in their possession to rebut the factual assertion of the petitioner, as averred in the writ petition, the assertion made by the appellant-petitioner, prima- facie, seem to be true.
5. The dismissal of writ petition, in limine does not appear to be consistent with the principles of administration of justice. Ordinarily, if a party satisfies the Court that it has brought the matter for consideration in which legal propositions of violation of principle of law or fundamental rights is invoiced and such assertion despite being in possession of record, neither refuted by submission of relevant documents or counter affidavit, justifies admission of the writ petition for regular hearing.
5-A. Although, admission of writ petition for regular hearing does not mean final adjudication or grant of prayed relief, however, the appellant has succeeded in establishing that in his writ petition, question of violation of statutory law and fundamental rights are involved and these assertions have not been rebutted by the other side through counter affidavit or submission of relevant documents. Such state of affairs demands admission of writ petition for the ends of justice, therefore, writ petition filed by the appellant-petitioner in the High Court, is admitted for regular hearing and the case is remanded. The High Court shall proceed further in accordance with law and finally dispose off the case.
With these observations, this appeal stands disposed off.