' M. TABASSUM AFTAB ALVI, J.---The supra titled writ petition has been addressed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, whereby proposal dated 5-10-2012 made by District Education Officer (Male), Sudhnooti, has been challenged for having been issued without lawful authority. A further direction is also solicited to restrain the respondents from abrogating notifications dated 9-6-2010 and 10-6-2010 respectively, through which, Boys Primary Schools Tararkhal Kanjari and Chatari along with Girls Primary School, Parrani Hamrota, were upgraded as Middle Schools.
2. Precise facts forming background of the instant writ petition are that petitioner No,1 is a politician and claimed to play a vital role in the politics, who was elected as Member of Legislative Assembly Azad Jammu and Khasmir from constituency No,2 (Baloch) and also remained as Minister of the Cabinet. The petitioners Nos.2 to 8 claimed to be social workers of their areas. It is stated that keeping in view dire need of establishment of Middle School in village Tararkhal which is a part of Kahala, the Government of the time was pleased to upgrade the Boys Primary School Tararkhal Kanjari as Middle School vide notification dated 9-6-2010. Three posts of Primary Teachers were already there, however, through notification, the Government had shifted one post of Senior Teacher B-16 from Boys High Court School Qilian as there were two posts of Senior Technical Teachers B-16, out of which, one surplus post was shifted. Likewise there was no Middle School in village Chatrari and the adjoining villages, therefore, through the same notification i,e, dated 9-6- 2010, Boys Primary School Chatrari was also up-graded as Middle School. Three posts of Primary Teachers were already there and two vacant posts from different institutions were shifted to the above upgraded School. Similarly, keeping in view need of Girls Middle School in village Prinian Hamrota, the Government of the time was pleased to up-grade Girls Primary School Prinian Hamrota as Girls Middle School vide notification dated 10-6-2010. Two posts of Primary Teachers were already there, however, one post of Senior Science Teacher B-16 was sifted from Boys Inter College Baloch and incumbent of the said post was adjusted in Boys Inter College Trarkhal vide notification dated 7-2-2012, which was later on modified through notification dated 21-2-2012. It is averred that all the above-mentioned institutions have been shown in the budget of financial year 2012-2013 as separate institutions and budget for each institution has also been allocated.
However, District Education Officer (Male) Sudhnooti, respondent No,4, on whims of hidden persuaders and opponent of promotion of education, secretly submitted' the impugned proposal on 5-10-2012 to Secretary Education, Schools, for down gradation of the aforesaid Middle Schools, as incumbents of the Senior Technical Posts having long service in the Education Department were practically ousted and not paid salary since numerous months, hence, it was suggested that they may be adjusted in their earlier institutions by cancellation of notifications dated 9-6-2010 and 10- 6-2010 respectively. The petitioners for abrogation of the proposal supra submitted repeated applications, through which, Minister Education and Secretary Education, Schools, were drawn attention towards the mala fide of District Education Officer (Male) Sudhnooti, however, needful was not done and due to apprehension of cancellation of the said notifications, petitioners constrained to file the instant constitution petition.
3. The official respondents, through written statement dated 8-1-2013 have controverted the writ petition, wherein it is stated that Education Department (Schools) shifted three posts of Senior Technical Teachers from Government Boys High School Kallha, Boys High School Sehar Basota and Inter College Baloch to Boys Primary School Tararkhal Kanjari and Chatrari as well as Girls Primary School Perenian Hamrota respectively: After the up-gradation of Primary Schools to Middle Schools, the incumbents of the posts became surplus, who cannot be paid salary for pretty long time, as the said posts were never shifted in accordance with prescribed procedure. It is alleged that as the incumbents of the posts supra were not paid salary, hence, it was correctly proposed by the District Education Officer (Male) for cancellation of notifications in question. It is also stated that Education Department failed to provide correct informations to Finance Department, hence, posts of Senior Technical Teachers were shifted against prescribed law and the disputed institutions were unlawfully upgraded, therefore, by accepting stand of Education and Finance Departments the concerned institutions be allowed to be restored in its original position. It is further stated that no rights whatsoever of petitioners have been violated through the impugned proposal, hence, solicited for dismissal of writ petition. The private respondents have also filed separate written statement in which chequered history of surplus teachers have been inserted. It is stated that disputed notifications were unlawfully obtained by petitioner No,1 who was Minister of the Cabinet at the relevant time and the posts of the answering respondents were secretly shifted who came to know about the said notifications in the budget of financial year 2012-13 when their salaries could not be paid, hence, they filed an appeal before the Service Tribunal for redressal of their grievance.
It is also alleged that petitioners Nos. 2 to 8 are the paid people, who are defending the illegalities committed by petitioner No,1 who is paying them for protection_ of his ill gotten gains. It is alleged that if the notifications in question are not allowed to be taken back, there will be no opportunity to adjust the private respondents who will continuously remain as surplus. It is also stated that petitioners incorporated wrong figures of students of the concerned upgraded institutions and craved for dismissal of writ petition.
4. Raja Gul Majeed Khan, the learned counsel for petitioners submitted that three institutions namely Boys Primary School Tarakhal Kanjari, Boys Primary School Chatari and Girls Primary School Parrani Hamrota were up-graded from Primary Schools to Middle Schools by the Government and the same were also placed in revised budget book of 2012-13, therefore, proposal framed by District Education Officer (Male) Sudhnooti dated 5-10-2012 is consisting of malice and outcome of some hidden personalities, therefore, the same is not sustainable as such. The learned counsel pressed into service that as the institutions supra after up-gradation are operational, therefore, the official respondents jointly and severally may be restrained from abrogating notifications dated 9-6-2010 and 10-6-2010 respectively. The learned counsel however, on court query admitted that no post was created by the official respondents, while up-grading the institutions in question.
5. Sardar M.R. Khan, the learned Additional Advocate General, while controverting the arguments of the learned counsel for petitioners submitted that before up-gradation of Primary Schools in question no concurrence was obtained from the Finance Department and institutions were up- graded due to influence of petitioner No,1 who was Minister at the relevant time in the Cabinet, by violating Rule 15 of Rules of Business, 1985. The learned counsel argued that due to issuance of notifications dated 9-6-2010 and 10-6-2010 cadre of the private respondents and others were unlawfully changed as Senior Technical Teachers to Senior General Line Teachers, hence, they became surplus and even not paid salary for numerous months, therefore, Government was constrained to recall the notifications in dispute as such.
6. Mr. Asghar Ali Malik, the learned counsel for private respondents Nos. 7 and 8 owned the arguments of the learned Additional Advocate General and added that although the institutions were upgraded from Primary Schools to Middle Schools, however no post was created, therefore, by committing fraud, the same were up-graded. The learned counsel emphasized that due to issuance of the notifications in question his clients, having about 20 years service in their credit, have become surplus, therefore, proposal dated 5-10-2012 made by District Education Officer (Male), Suddhnoti, is in accordance with canon of law and prayed for dismissal of writ petition.
7. After hearing the learned counsel for parties at length, I have perused the contents of writ petition and examined the appended record with utmost care.
8. A contemplate perusal of record reveals that Govt. Boys Primary Schools Tarakhal Kanjari and Chatari along with Girls Primary School, Parrani Hamrota, were upgraded as Middle Schools through notifications dated 9-6-2010 and 10-6-2010 respectively. All the above institutions were up-graded without creation of posts which fact was also admitted, on Court query, by the learned counsel for petitioners during course of arguments. It also transpires that no proposal were made by the concerned heads of the institutions for up-gradation of the Schools supra. Even the concerned District Education Officers were unaware about the up-gradation of the institutions functioning under their administration since pretty long time. It appears that neither Divisional Director Schools concerned nor Secretary Education Schools made recommendations for up- gradation of the schools in dispute. However, without processing files the disputed schools were up-graded in an hasty manner, without receiving proposals and recommendations of Headmasters/Headmistress of the concerned Schools, District Education Officer (Male). Sudhnoti, District Education Officer (Female) Sudhnoti, Divisional Director Schools Poonch Division as well as Secretary Education Schools. Even criteria laid down by the Finance Department for up-gradation of Primary Schools as Middle Schools regarding strength of students, distance and land required for Middle Schools was not considered while upgrading the disputed schools. It is settled principle of law that ill-gotten gains cannot be protected through writ jurisdiction. In case titled Custodian of Evacuee Property and 7 others v. Tariq Mahmood Butt 2001 YLR 3139, it was held by the Hon'ble Supreme Court at page 43 of the report as under:- "There is yet another important aspect of the matter. It may be observed that an aggrieved person is not permitted to invoke the writ jurisdiction for the perpetuation of injustice or to save his ill-gotten gains. Thus, the respondent, after having got the land at his own instance in lieu of the land allotted to him, cannot turn round and say that he was still entitled to receive the compensation of the evacuee land which was allotted to him."
' Similar view was expressed by the Hon'ble Supreme Court of Pakistan in. Case titled Mst. Kaniz Fatima v. Muhammad Salim and others 2001 SCMR, 1493, wherein at page 1505 of the report it was held as follow:-- "In the light of criterion as mentioned herein above the case in hand has also been examined and we are of the view that the question of any injustice does not arise because the land in dispute was temporarily allotted- in favour of appellant on 24-2-1953 when respondent was not in the field. We are of the considered view that relief in Constitutional jurisdiction being discretionary should not be granted to hold retention of ill-gotten gains."
' An identical view was expressed by the Lahore High Court in case titled Messrs Air Home International v. Government of Punjab and another (2002 CLC 780). At page 783 of the report it was observed as under:-- "As in the present cases it is the petitioners who received the stamp duty in cash on the Air Tickets issued by them. 1, therefore, do not find any case being made out for exercise of Constitutional jurisdiction particularly when it is glaring on the face of record that the very purpose of these writ petitions in retention of ill-gotten gains and this Court would never exercise writ jurisdiction in such-like matters. All these writ petitions are dismissed with costs." The aforesaid view was also expressed in case titled Kamran Asghar v. Board of Intermediate and Secondary Education, D.G.
Khan and others (PLD 2001 Lahore 260), wherein at page 269 of the report it was observed as under:-- "the discretion of this Court is generally not exercised where it perpetuates an illegality or sustains retention of ill-gotten gains or in favour of a person coining to the court with unclean hands."
9. All the three schools were up-graded without creation of posts by shifting few posts that to without adopting due process of law, from others institutions by violating fundamental right of education of students from where the same were shifted. The petitioners, therefore, have not invoked jurisdiction of this Court with clean hands. It is settled principle of law that equitable relief cannot be extended in favour of a party who has not invoked constitutional jurisdiction of the Court with clean hands. In case titled Kashmir Mining and Development Works v. Azad Jammu and Kashmir Government and 5 others 1997 CLC 1771, at page 12 it was held by the apex Court as under:-- "it is well settled principle of law of writs that a party which does not come to the Court with clean hands by following the policy of hide and seek is not entitled to the discretionary relief in exercise of writ jurisdiction. A reference may be made to the cases reported as Abid Hussain Jafri v. Azad Government 1998 PLC (C.S.) 141 and Bashir Ahmed v. Addl. Custodian of Evacuee Property 1998 CLC 692 wherein the aforesaid principle has been affirmed. Therefore, irrespective of the validity or otherwise of the arguments advanced by the learned counsel for the appellant, we are of the view that the appellant is not entitled to any relief in view of his conduct indicated above."
10. A perusal of the contents of writ petition reveals that the same has been filed in representative capacity without fulfilling requirements prescribed under Order I Rule 8 of Civil Procedure Code, which is reproduced as under:-- "8. One person may sue or defend on behalf of all in same interest.---(1) Where there are numerous persons having the same interest in one suit, one or more of such persons may, with the permission of the Court, sue or be sued, or may defend, in such suit, on behalf of or for the benefit of all persons so interested. But the court shall in such case give, at the plaintiff's expense, notice of the institution of the suit to all such persons either by personal service or, where from the number of persons or any other cause such service is not reasonably practicable, by public advertisement, as the Court in each case may direct.
(2) Any person on whose behalf or for whose 'benefit a suit is instituted or defended under sub- rule (1) may apply to the Court to be made a party to such suit."
As per law, every suit sought to be instituted as a representative suit must be filed in accordance with the procedure provided by Rule 8 supra, which is mandatory. The rule is also applicable to writ petition. An identical view was expressed by the Lahore High Court in case titled Waqar Alam v.
District Coordination Officer/Chairman and 3 others (2005 YLR 1742), wherein at page 1743 of the president case it was held as under:-- "It is settled principle of law that principles of C.P.C. Are applicable in Constitutional petitions as per law laid down by the Honourable Supreme Court in Hussain Buksh's case (PLD 1970 SC 1). The petitioner has filed this constitutional petition in representative capacity without fulfilling the requirement prescribed under Order I, Rule 8, C.P.C., therefore, Constitutional petition is not maintainable in view of the law laid down by the Division Bench of this Court in Anjuman Araian, Bhera v. Abdul Rashid and 5 others (PLD 1973 Lah. 500). It is also settled principle of law that the petitioner has filed this Constitutional petition in view of the public nuisance created on account of establishment of D-Class Stand in the residential area; therefore, petitioner has to file Constitutional petition after fulfilling the requirements under sections 91 and 92 of C.P.C. In this view of the matter, Constitutional petition is also not maintainable."
' The similar view was expressed by the Peshawar High Court in case titled Tanzeem Bazyabi-E- Hanooq Malkan-E-Orush Abbottabad through General Secretary v. Deputy Commissioner/Collector, Abbottabad and 8 others (1992 CLC 382), wherein at page 391 of the report, it was observed as under:-- "There is sufficient force in the technical objection raised by the learned counsel for the respondents as well. It is by now well settled that provisions of C.P.C., apply to writ petitions as well and as such the petition should have been drafted according to the provisions of Order I Rule 8 and the list of the owners ought to have been attached with the instant writ petition. Moreover substantial portion of the suit property has been alienated by the Government in favour of different individuals as borne out by the document filed by the respondents and also from the entries of the latest record of rights placed on the file. The transferees have made constructions over the property through spending huge amounts and are obviously interested persons to defend their rights in the above property. They have not been made parties to the instant writ petition and in their absence no effectual and complete adjudication is possible. As earlier discussed in detail the cause of action accrued to the petitioner a century ago and the instant writ petition badly suffers from lathes as well. Accordingly the petition is not entertainable on this ground as well."
11. The learned Additional Advocate General, while addressing final arguments submitted that all the institutions were upgraded witho concurrence of Finance Department. However, the above point w- not raised in the written statement, hence, I was persuaded to summon relevant record from Secretary Education Schools who submitted a report bearing No,SESE/Inquiry/18597/2013, dated 30-10-2013 stating therein that the relevant record of schools in question was misplaced. It seems that no record was maintained by the concerned employees of Education Department, therefore, Secretary Education Schools is directed to take disciplinary action against the culprits who were responsible for wastage of record, if any, of the schools in dispute with report to Registrar of this Court.
12. I am conscious of the fact that no up gradation of Schools Rules have been framed, therefore, such up-gradation of Schools is prerogative of the Government which must be exercised in genuine cases and not in an arbitrary and unguided manners just to oblige political high-ups.
Before up-gradation the land required for a Middle/High School must be acquired, premises be erected, posts needed to administer an up-graded School be created and concurrence of Finance Department for the purpose must be obtained. It should not be that strength of students be lesser to the strength of the staff of the concerned institution.
13. For the reasons enlisted above finding no force in the instant writ petition the same is hereby dismissed. A copy of the instant judgment shall be transmitted to Secretary Education Schools for compliance. The costs shall follow the eventualities.