' CH. MUHAMMAD IBRAHIM ZIA, J. --- This appeal by leave of the Court has been filed against the order of the High Court dated 3,12.2012 whereby the writ petition filed by respondent No, 1 has been admitted for regular hearing.
2. The relevant facts of the case necessary for disposal of the appeal are that respondent No, 1 flied a writ petition In the High Court on 3.7.2005, alleging therein that he was serving as Assistant Director Industries in grade B17. He was sent on deputation in TEVTA on 19,12.2007. The TEVTA advertised some posts of Deputy Director B-18. Apart from others, he also applied and was approved for the post of Deputy Director. He was offered the post of Deputy Director Project, In reply he wrote a letter to the authority that he be inducted against a permanent post and if he is inducted against the project post, he will keep intact his lien. Although, he was at serial No, 1 of the merit position but he was not appointed on permanent post. Later on, the authority repatriated him in his original department. He sought a direction that the notification of repatriation be struck down and he shall be appointed on permanent basis as Deputy Director B-18 against the post of normal budget. The learned Chief Justice of the High Court admitted the writ petition for regular hearing through the impugned order dated 3.12.2012, hence, this appeal.
3. Raja Muhammad Hanif Khan, Advocate, the learned counsel for the appellant, after discussion of necessary facts, submitted that admission of writ petition for regular hearing through the impugned order is patently against the principle of law enunciated by this Court and the other superior Courts, on the subject-matter. On behalf of the appellant a number of legal precedents were referred in the arguments but none of these has been considered by the learned Chief Justice High Court which clearly speaks that the order has been passed without application of judicial mind, quite in disregard with the arguments of the appellant which means that the fundamental principle of natural justice, Leaudi alteram partem is attracted in this case, Hey further submitted that according to the principles of administration of justice, fruitless litigation cannot be encouraged when on the face of it, according to the factual and legal proposition writ petition is not maintainable, its admission amounts to abuse of the process of law and Courts for dragging the parties into unnecessary agony of litigation as well as to waste the time of the Courts for ulterior motives, Therefore, the impugned order is not maintainable. He has placed reliance upon the cases reported as Azad Jammu & Kashmir Board of Intermediate and Secondary Education, Mirpur v. Engineer Muhammad Khalid [2004 SCR 136], Kh, Manzoor Qadir v. Azad Government & 5 others [2010 SCR 215], and Ehsan-ur-Rehman & 10 others v. Arshad Ali Khan & 5 others [PLJ 2012 SC (AJ&K) 64].
4. On the other hand, Raja Gul Majeed Khan Advocate, the learned counsel for the respondents strongly opposed the appeal on the ground that the writ petition has been admitted for regular hearing. The appellants are at liberty to place their version through written statement in the High Court which is also a Constitutional superior Court and ultimately the case will be decided on merits according to law. All the factual aspects argued before this Court are premature. It is consistent practice of this Court not to preempt the jurisdiction of the High Court, therefore, this petition has no merits and is liable to be dismissed.
5. We have considered the arguments of the learned counsel for the parties and also carefully examined the ,record. The learned counsel for the appellants in his arguments has stressed mostly on the following points for dismissal of writ petition: (i) that according to the peculiar facts of this case, respondent No, 1, in fact approached the High Court for enforcement of contractual obligations. According to the settled principle of law, in such case, no writ petition is maintainable;
(ii) that due to the respondent No, l's own conduct on the basis of the arguments, he himself brought on record the documents to attract the principle of acquiescence and estoppel and lastly the principle of laches fully attracted. There is a chain of authorities that writ petition which is hit by mischief of acquiescence, estoppels or laches, is not maintainable. We have considered both the above legal propositions raised in arguments keeping in view the peculiar facts of the case. As for as the first argument is concerned, in the light of the material facts stated in the memo, of writ petition and the prayer clause, it appears that the question of contractual obligation is not directly involved as respondent No, 1 has built his whole case on the basis of merit list prepared for appointment to the advertised post of Deputy Director, grade BPS-18 on normal budget. Thus, this point stands repelled and does not require any further appreciation of the case-law or other facts of the case.
6. When the whole material factual and legal propositions as brought on record by respondent No, 1 in his writ petition are appreciated in line with the true spirit of law, it becomes crystal clear that the respondent-petitioner's whole case rests upon the process of selection and preparation of merit list relating to the advertised post of normal budget i,e, Deputy Director grade BPS-18.
7. According the celebrated principle of law, for a mission of writ petition, the petitioner has to prima facie substantiate his contentions with the support of available possible material and when the Court is satisfied that the factual proposition brought on record by the petitioner in writ petition according to its nature also finds support from such material; or otherwise admissible legal proof requires serious consideration for enforcement of fundamental rights or any statutory law, the petition can be admitted for regular hearing. If the Court is not satisfied or the legal and factual proposition stated by the petitioner in the writ petition are not satisfactorily supported from the record or material produced by the petitioner, the Court may refuse exercise the discretionary writ jurisdiction or admit such writ petition for regular hearing.
8. In the present case, the petitioner in para 3 of his writ petition averred that in response to advertisement published in the newspapers in March, 2009, he appeared as a candidate, qualified the test and interview but was wrongly placed at third position. The Chairman TEVTA took notice and ordered for correction of the merit list. In para 6 he averred that he was not aware of the fact of his first position, thus, he accepted the contractual appointment with the condition of keeping intact his lien. In view of the above averments of the writ petition, the respondent admitted that he participated in the selection process, merit list was prepared and he has not challenged the same before any forum. He has placed on record the copy of merit list marked as annexure PB/1 which speaks that the same was prepared on 22.7.2009 and he has obtained third position with percentage of 50.68, marks. Whereas, the candidates obtaining first and second position secured percentage of 52.39 and 51.15 marks respectively. Thus, it is clear that respondent-petitioner kept mum for almost three years period and in this regard he has for the first time challenged validity of the merit list prepared on 22.7.2009 by filing the writ petition on 3.7.2012. No plausible explanation has been made for condonation of such inordinate delay and bringing out his case from the principle of laches. He has made basis the note written by the Chairman TEVTA, on the merit list wherein it has been mentioned that according to his calculation, the respondent-petitioner stood top on merit. Amazingly, the same person, i,e, the Chairman has signed the merit list as Chairman of the Committee wherein the respondent-petitioner has been placed at third position. Same like, he has placed on record another summary marked as annexure PB/2 in which the merit position has been confirmed by the Chairman. The same Chairman TEVTA issued contractual appointment orders of the respondent on 30.9.2009.
9. The Chairman on one hand has accepted the merit list and on the other hand has written that "difference between serial No, 1 and 3 of the merit list is to be corrected". Amazingly, the Chairman who was himself In charge of the whole affairs, neither pointed out any specific error nor took any action rather he issued the appointment order of the contestant appellants No, 7 and 8 herein vide order dated 30.9.2009. Prima facie, the note appears to have been incorporated due to some undue influence or favouritism and nepotism. Be that as it may, such-like conduct and acts cannot be allowed to shatter down the whole proceedings or merit position, If at all there was any such error or omission, the respondent-petitioner should have approach for redressal within appropriate time but he has failed to do so for quite a long period of three years. It appears that he accepted the tenure of the post for three years period and now on completion of his term, when his repatriation process to the parent department is initiated he has come forward, with the story to disturb the who process.
10.The respondent-petitioner has categorically stated in the memo of writ petition and also produced record that he has accepted the contract appointment and now he, felt aggrieved from the process of his repatriation to his parent department, as is proved from the document marked as annexure PJ. dated 5th May, 2012.
11.A perusal of the pre-admission comments filed by the respondents in the High Court clearly reveals that vital legal and factual proposition along with documentary proof have been brought on record of the High Court. The detail of arguments have also been reproduced by the learned Chief Justice in the impugned order but have not been considered for making his opinion. Only in a single sentence conclusion that the points raised require detailed examination. In our considered view, as according to consistent practice of this Court and the statutory law, for admitting the writ petition, the supporting material along with the contents of writ petition has to be properly appreciated, and after appreciation, if the Court comes to the conclusion that irrespective of the objections of respondents, the petitioner in view of his own produced material could not succeed to substantiate his stance and the admission of writ petition will be fruitless exercise, in such case, the Courts should not hesitate in rejecting the writ petition.
12.As hereinabove the factual and legal propositions discussed, it can be satisfactorily proved from the material provided by the petitioner himself that even without consideration of the respondent's objections, the petitioner's own conduct due to attraction of the principles of laches makes the writ' petition as non-maintainable, then such writ petition can be dismissed at preliminary stage.
13.In the instant case, according to the respondent-petitioner's own averments, he participated in the selection process, merit list was prepared on 22.7.2009, in which he is placed at third position.
He accepted the tenure of contract appointment for a period of three years in 2009. After preparation of merit list, the process of his repatriation to the parent department was initiated. He has neither objected to the merit list nor approached to any proper forum for redressal of his grievance, if any, relating to merit list. He remained mum for a long period of three years.
14.The respondent-petitioner's own admitted conduct fully attracted the principle of acquiescence as well as laches. The principle of law enunciated by this Court in the cases reported as Ehsan-ur-Rehman & 10 others v. Arshad Ali Khan & 5 others [PLJ 2012 SC (AJ&K 64], Kh. Manzoor Qadir v. Azad Government & 5 others [2010 SCR 215], Abdul Qadir v. Abdul Karim and 4 others [2000 SCR 97] and rahir Mehmood Khan & 13 others v. Azad Government & 3 others [2006 SCR 328], are fully attracted. According to the Constitutional provisions, the principle of law enunciated by this Court, is fully applicable. The same has to be considered and cannot be over sighted till final disposite of the matter as such practice will not serve any useful purpose rather wily amount to futile and fruitless exercise.
15.So for as arguments of the le3rned counsel for the respondents that the appellants herein may raise at these objections before the High Court and the High Court may on final adjudication resolve the issue are concerned, in view of the submission and in the light of the peculiar facts and circumstances of the case we are not convinced with this argument. As it has already been observed that leaving aside the respondent's objections as both the principles of acquiescence and laches in the light of the material produced by the petitioner himself established to be fully attracted, then there is no hurdle in the way of the High Court to refuse admission of such writ petition for regular hearing. This Court has already attended such-like eventuality. According to the celebrated principle of law, it is duty of the petitioner in writ petition to make out prima facie case. If he fails, the writ petition can be rejected at preliminary stage. Reference can be made to a case reported as Kb. Noorul Ameen v. Sardar Muhammad Abdul Qayyum Khan and another [1993 SCR 27].
16. According to Rule 42 of the Azad Jammu and Kashmir High Court Procedure Rules, 1984, the provisions of Civil Procedure Code, as for as practicable are applicable to the writ proceedings. The other aspect of the matter is whether this Court can interfere at preliminary stage of writ petition or not, this proposition has already been dealt with by this Court in the case reported as Syed Manzoor Hussain Gilani v. Sain Mullah. Advocate and 2 others [PLD 1993 SC (AJ&K) 12] wherein it has been observed as follows.--- "We find no force in the contention of the learned counsel for respondent No,1, Sh, Abdul Aziz that the High Court should be 7,1,allowed to decide the case and the points raised in the case may be attended to if andwhen an appeal is brought this court. We had the occasion to observe in 30 unreported case entitled Sardar Skindar Hayat Khan v. Syed Ghulam Mujtaba Bokhari (Civil Misc.
Nos. 7 and 8 of 1990, decided on 15.5.1990) that:-- `The High Court is a Court created by the Constitution and it is primarily the High Court which is clothed with the powers of issuing writ petitions. It is only after the High Court has become functus officio that normally a case is called up by this Court. But it cannot be denied that this Court has the power to interfere at an earlier stage and pass any suitable order where a case is made out If there was any, doubt on this point it has been set at rest by a judgment of this Court in a case titled Qazi Bashi,' Ahmed v Amjad Ali Civil Appeal No 13 of-1988: ' In the light of the conclusion reached by us, we are convinced that, it is a case in which interference at the preliminary stage is fully justified."
' While defining the scope of the term 'material facts' relating to the pleadings of the parties in writ petition, it has been observed in the case reported as Kh. Noorul Ameen v. Sardar Muhammad Abdul Qayyum Khan and another [1993 SCR 2.7; that:--- "The words "material facts' appearing in Order VI, rule 0.P .C, have been defined by various judicial authorities as under:---
1. the facts upon which the plaintiffs cause of action or the defendants defence dependents in other words all those facts which must be proved in order to establish the existence of cause of action or defence; and
2. all facts which are necessary establish a cause of action or defence, the party pleading them is entitled to prove at the trial."
' As it is hereinabove observed that the provisions of Civil Procedure Code are applicable to the writ proceedings. Under the provisions of Order VII, Rule 11, of Civil Procedure Code, the Court can reject the plaint if it appears from the statement of the plaint that it is barred by any law. it is now almost settled that law includes the principle of law enunciated by the Courts as well as the statutory law.
As according to the peculiar facts of this case, from the statement of writ petition, principle of acquiescence and laches are fully attracted, in this state of affairs, the High Court is fully competent to reject such petition on preliminary hearing.
17.According to the celebrated principle of law, the Courts are meant for adjudication of the matters for providing relief to the litigants, resolution of the legal and factual proposition and cannot continue proceedings in the case merely for academic discussions which hardly can bring fruits for the party who approached the Court.
' In view of the above-stated reasons, while accepting this appeal, it is declared that the respondent-petitioner's writ petition is hit by the principle of !aches and acquiescence according to the material brought on record by himself. Therefore, the writ petition in such state of affairs has to be rejected as being devoid of any substance for admission for regular hearing.