' GHULAM MUSTAFA MUGHAL, C.J.--- Through this petition filed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, appointment order of the private respondent dated 06-01- 2013 has been challenged for having been made without lawful authority. Facts forming background of the captioned petition are that petitioner is First Class State Subject of Azad Jammu and Kashmir and hails from District Haveli. It is alleged that the petitioner was initially appointed as Junior Clerk B-07 in Municipal Committee Kahuttaon on temporary basis vide order dated 25-10- 2011. Thereafter, the said post was advertised by the respondents for permanent appointment. The petitioner also applied for his appointment. After conducting test and interview, respondents prepared a fake merit list and appointed respondent No.5 vide order dated 08-01-2013. It is contended that the appointment of private respondent is mala fide because respondent No.2 who was Chairman of the Committee is father of private respondent and the other members of the committee were under his influence, therefore, appointment order of the private respondent is liable to be cancelled. It is further submitted that the respondents in order to achieve their target and with ulterior motive purchased all the newspaper in which the proclamation was issued, due to which other aspiring candidates could not participate in the test and interview. It is further contended that the petitioner applied many times for the copies of merit list but the same has not been provided to the petitioner, which was in the custody of respondent No.2.
' Respondents have contested the petition by filing written statement wherein it is stated that the writ petition has been filed with ulterior motives and with unclean hands. It is further submitted that two other petitions were filed against the same order previously and this is the third one. It is cbntended that the writ petition is hit by laches because the same has been filed after a period of 1 year. It is further conten4d that the petition is also hit by the principle of acquiescence and estoppel because the petitioner participated in the test and interview and has filed the petition after being unsuccessful in the test and interview. It is further submitted that the petitioner has an alternate remedy in shape of appeal under the relevant law, hence, the petition is liable to be dismissed. In parawise reply it is contended that whole proceedings have been taken in accordance with law and the appointment has been made in view of the merit list, prepared correctly on the basis of performance of the candidates.
' Kh. Tariq Samad, the learned Advocate appearing for the petitioner contended that petitioner was eligible and qualified candidate for appointment as Clerk B-7 but with mala fide intention and with ulterior motives on account of favoritism and nepotism has been deprived him from his livelihood.
The learned Advocate further contended that Chairman of the Selection Committee, in the present case, was Administrator Municipal Corporation Kahuta who was father of the private respondent, therefore, the process of selection was not fair and transparent. The learned Advocate argued that other 2 members of Selection Committee were working under his supervision therefore, their opinion was also biased, therefore, it cannot be said that selection made by them was fair and the requirement of principle of natural justice was fulfilled. The learned Advocate further argued that entry in the service is constitutional right of a state subject if he is otherwise eligible and he cannot be deprived of from the same by arbitrary exercise of powers or by pick and choose. The learned Advocate submitted that necessary copies were not issued to him in due course of time due to the influence of respondent No.2, therefore, the petitioner could not file the petition well in time however, after obtaining Photostat copies from one Sultan Mehmood Khan who also challenged the appointment, the petitioner has filed the petition without further delay. The learned Advocate in support of his submissions placed reliance on the following cases:-
1. Civil Appeal No.87/13 titled Muhammad Ayub Khan and another v. Divisional Director Schools Muzaffarabad and 7 others decided on 8-11-2014;
2. Writ Petition No.1007/14 titled Barrister Syed lftikhar Ali Gillani and others v. Messers Friends Technical Engineering Association Muzaffarabad/ Rawalpindi and 19 others decided on 13-6-2014;
3. Writ Petition No.408/08 titled Mumtaz Hussain V. Azad Government and others decided on 10-5- 2014;
4. Writ Petition No.619/13 Muhammad Zahoor Khan v. Commissioner Muzaffarabad Division and 6 others decided on 23-6-2014.
5. Writ Petition No.754/10 titled Waqar Hussain v. Selection Committee and 5 others decided on 21- 6-2012;
6. Muhammad Ramzan v. Fazal Wahid and 5 others (2004 YLR 1050);
7. Nadeem Ahmad and another v. Azad Government of the State Jammu and Kashmir through its Chief Secretary Muzaffarabad and 6 others 2010 PLC (C.S.) 336; ' Mr. Abdul Rasheed Abbasi, the learned Advocate appearing for the private respondent argued that petition has been filed after an inordinate and unexplained delay hence, suffer from laches and is liable to be dismissed without attending its merits. The learned Advocate further argued that totally a new case has been set up by the learned Advocate representing the petitioner during arguments and the settled law is that a fact which has not been pleaded cannot be allowed to be argued because the other party cannot be taken by surprise. The learned Advocate contended that no application has been submitted in order to establish the fact that application for obtaining copies was in fact moved to the respondents well in time. The learned Advocate further contended that this fact has been controverted by the respondents in their written statement and also by filing a specific affidavit of Chief Officer Municipal Corporation Kahuta. The learned Advocate further contended that petition is mala fide and has been filed on behest of Stiltan Mehmood and Maqsood Ahmed Khan who also filed similar petitions but remained unsuccessful and ultimately have not prosecuted those petitions. The learned Advocate submitted that other 2 members were independent therefore it cannot be said that appointment made on the basis of test and interview and merit position of the private respondent was bad in law and mala-fide etc. The learned Advocate in support of his submissions placed reliance on 1995 MID 1350, and pleaded that laches cannot be ignored even where infringement of fundamental right is proved.
' Sardar Abdul Sami Khan, the learned Advocate appearing for the official respondents adopted the arguments of Mr. Abdul Rasheed Abbasi, the learned Advocate for respondent No.5.
' I have heard the learned Advocate for the parties and perused the relevant record appended with the file as well as case-law with utmost care.
' It may be stated that Writ Petitions Nos.1007/14 and 408/2008 as well as PLJ 2010 AJK 82 referred to and relied upon by the learned Advocate for the petitioner have no relevancy with the controversy in hand, therefore, need not to be discussed.
' In Muhammad Ramzan's case (2004 YLR 1050) it was observed that no limitation runs for filing an application for setting aside a void order. ' It was further observed that mere technicalities of procedural law should not be considered as a hurdle and may not be allowed to defeat the ends of justice.
' In Muhammad Ayub Khan's case, supra, an identical controversy was brought before this Court. A direction was issued to the Secretary Education to hold an inquiry into the allegations leveled against the Chairman of the Selection Committee, who was allegedly relative of one of the candidates for appointment. It was ordered that if allegations are proved then the appointment would be deemed cancelled and the authority shall make fresh appointment in accordance with law. Feeling aggrieved from the order of this Court dated 17-12-2012 passed in Writ Petition No.1506/09 an appeal was taken to the apex Court. The apex Courtin paras 9 and 10 of the judgment observed as under:- "To verify the allegations regarding the relationship of respondents Nos.5 and 6 with the District Education Officer (male) Elementary, Bagh, an inquiry was conducted by the Secretary, Elementary and Secondary Education in pursuance of the direction issued by the learned High Court. Therefore, we are intended to examine this question at first. The relevant portion of the inquiry reports reads as under:- {{URDU TEXT}} ' After going through the above said finding of the inquiry officer, it is clear from the inquiry report that respondent No.6 is close relative of the District Education Officer (Male) Bagh, who was the member of the concerned Selection Committee. The credibility of the Selection Committee has become under clouds and doubtful after clear finding of the inquiry officer. Therefore, the apprehension of the appellants regarding the favour extending to one of the relatives cannot be ruled out. It is amazing that despite being aware of the fact that a close relative is also appearing in the test and interview, the District Education Officer (Male), Bagh remained holding the assignment of member selection committee, which is against the norms of natural justice. When it came into the knowledge of the District Education Officer that one of his relatives is also candidate of the selection process, it was not proper for him to associate with the concerned selection committee. However, nothing has come on record that respondent No.5 has any relationship with the District Education Officer.
10. After going through the above said inquiry report, we are of the view that when it came into the knowledge of the District Education Officer (male) Elementary Bagh that one of his relatives has also applied for the said post and he is the member of that committee, it was not proper for him to associate him with the Selection Committee rather to disassociate himself. The candidate, who was otherwise eligible for the post but it would be presumed that the member of the Selection Committee, who was his relative would have soft corner for him. In this way, the learned High Court rightly adopted the course while directing the authority to hold an inquiry in this regard. When the inquiry report came on record, it reveals that the fact is correct, therefore, we do not find any illegality in the judgment passed by the learned High Court and the same is in accordance with law. The arguments advanced by the learned counsel for the appellants in this regard have no substance. In this scenario, we are unable to differ with the findings recorded by the learned High Court that the allegations if proved after inquiry, the fresh appointment shall be made after due process of law."
' In the case of Muhammad Zahoor Khan and Waqar Hussain the Chairman/Members of the committee were close relative of the selected candidates, therefore, appointments of respondents therein, were cancelled and it was observed that it was not proper for the Chairman/members of the committee to associate in the proceedings rather they should have disassociated after knowing that their relative is appearing as candidate.
In the present case it is not specifically denied by the respondents that respondent No.2, Chairman Selection Committee was father of the private respondent and he has not associated in the proceedings. It is simply stated by the respondents in their written statement that mere relationship of the private respondent with the Chairman Selection Committee does not invalidate the proceedings of the committee. Therefore, the appointment of the private respondent in presence of his father as Chairman Selection Committee cannot be declared fair and transparent, as has been held by this Court in Writ Petition No.754/10 titled Waqar Hussain v. Selection Committee and 5 others decided on 21-6-2012 and Writ Petition No.619/13 titled Muhammad Zahood Khan v. Commissioner Muzaffarabad and 6 others decided on 23-6-2014, referred to and relied upon by the learned Advocate for the petitioner.
' Now, I would like to meet the objection of Mr. Abdul Rasheed Abbasi, the learned Advocate for the private respondent that the petition is hit by laches because the same has been filed after considerable delay and without plausible explanation. It may be stated that order dated 8-1-2013 whereby the private respondent has been appointed has been challenged through the captioned petition on 1-2-2014.
In ground 'G' of para 8 the petitioner has furnished the following explanation for filing petition at belated stage:- "G. The petitioner applied many times for merit list as well as for the appointment order of respondent No.5, but failed to obtain the same from the concerned office as same were in custody of respondent No.2 and now petitioner has become able to get these documents from Sultan Mehmood who has also filed the writ petition against the said post in the Hon'ble Court, therefore, instant writ petition is within time."
' The question which emerges for decision is as to whether this petition in its particular circumstances merits dismissal without attending its merit on the ground of laches. My opinion is not in affirmative. In this petition as the respondents have specifically pleaded that writ petition suffers from laches and should be dismissed, therefore, it is important to determine the fate of the petition on that point. The effect of laches on the proceedings has been examined by the Superior Courts in various judgments. In case titled Pakistan Post Officer v. Settlement Commissioner and others (1987 SCMR 1119) after considering the case law on the subject, the limitation and laches have been distinguished by the apex Court. At page 1123 of the report it was observed as under:--- "It needs to be emphasized that there is absolutely no justification to equate laches with statutory bar of limitation. While the former operates as a bar in equity, the latter operates as a legal bar to the grant of remedy. Thus, in the former, all the dictates of justice and equity and balance of legitimate rights are to be weighed; in the latter, subject to statutory relaxations in this behalf, nothing is left to the discretion of the Court----It is a harsh law. Thus, passage of time per se brings the statute of limitation in operation, but the bar of laches does not deny the grant of right or slice the remedy unless the grant of relief, in addition to being delayed, must also perpetuate injustice to another party. It is also in this very context that the con donation of delay under section 5 of limitation Act will be on different harder considerations than those in a case of laches. For example, while it is essential to explain and condone the delay of each day vis-a-vis statutory limitation, there is no such strict requirement in cases of laches."
' Again at page 1124 observed as under:--- "It is well-known that indiscriminate application. Of this decision has caused immense loss to the public exchequer wherein an innocent third party, namely, the tax-payer in ultimate analysis, suffers the loss. This is besides those cases where delays are collusive so as to avoid dictates of justice and law. Hence, a departmental delay whenever put forward as a ground for con donationof delay requires consideration on its merits and rejected or accepted accordingly, as the case may be.
' In the case of laches, however, the principles of condonation would be totally different. It being in the field of equity, it will not be denied: where either the negligence is not culpable vis-a-vis the merits of the case; or, when there is no equity in favour of the party who would be the gainer in case the condonation is denied."
' Again at page 1125 of the report it was observed as under:- "We agree that the mere fact that the order is void would not necessarily displace the bar of laches in equitable jurisdiction. The rule is that if it is a just and proper order then notwithstanding it being otherwise void, it need not beset aside in writ jurisdiction, if the same was filed after inordinate delay. See S. Sharif Ahmed Hashmi v. Chairman, Screening Committee, Lahore and another 1978 SCMR 367. On the other hand, if it is a void order and is also unjust and improper besides being illegal, the High Court will have no hesitation in setting it aside despite the objection regarding laches. It is so because the High Court would then be acting on a still higher principle than that of laches that: injustice is not perpetuated with the blessings of the Court in its discretionary jurisdiction, as the direction to dismiss a writ petition cannot be exercised in aid of injustice.
' In this case, if the High Court would have examined the forgoing features in the subject matter of the writ petition the results would have been different. As a necessary corollary, therefore, it has to be laid down that writ petition cannot be dismissed on ground of laches, without examining the dictates of justice in the claim of each party. This, of course, is in addition to examination of law and jurisdictional points involved in the case." (underlining is mine)
' The same principle was reiterated and followed in case titled "Jawad Mir Mohammadi and others v. Haroon Mirza and others" PLD 2007 SC 472, by the full bench of apex Court of Pakistan and in para 29 of the report, it was observed as under:---
29. From a perusal of the passage/ quotations reproduced herein above the question of delay/laches in filing the constitutional petition has to be given serious consideration and unless a satisfactory and plausible explanation is forthcoming for the delay in filing a constitutional petition, the same cannot be overlooked or ignored subject, of course, having regard to the facts and circumstances of each case. It will also be useful to reproduce another passage from the same book appearing on page 35 as under:-- Laches essentially consists of a substantial lapse of time couples with the existence of circumstances which make it inequitable to enforce the claim. Delay will accordingly be fatal to a claim for equitable relief if it is evidence of an agreement by the claimant of abandon or release his right, or if it has resulted in the destruction or loss of evidence by which the claim might have been rebutted, or if the claim is to be business (for the claimant should not be allowed to wait and see if it prospers), or if the claimant has so acted as to induce the defendant to alter his position on the reasonable faith that the claim has been released or abandoned. But apart from such circumstances delay will be immaterial. There can be no abandonment of a right without full knowledge, legal capacity and free will, so that ignorance or disability or undue influence will be a satisfactory explanation of delay.
' The judgment was again followed in case titled "State Bank of Pakistan through Governor and another v. Lmtiaz All than and others" 2012 SCMR 280, wherein at page 304, it was observed as under:- propriate forum within the stipulated period/time, the grievance though remains but it cannot be redressed because if on one hand there was a right with a party which he could have enforced against the other but because of principle of limitation/laches, same right then vests/accrues in favour of the opposite party.
' In case titled "Azad Government of the State of Jammu and "Lathes is a doctrine where under a party which may have a right which was otherwise enforceable, loses such right to the extent of its enforcement if it is found by the Court of a law that its case is hit by the doctrine of laches/limitation. Right remains with the party but it cannot enforce it. The limitation is examined by the Limitation Act or by special laws which have inbuilt provisions for seeking relief against any grievance within the time specified under the law and if party aggrieved do not approach the apKashmir v. Hall Sumandar Khan and others" 1995 SCR 259, the apex Court of Azad Jammu and Kashmir at page 267 observed as under:- "If we accept the explanation that laches in filing writ petition can be condoned on the ground that the concerned party was waiting for the decision of another identical case then there would be no end to the litigation. Because other persons who were adversely affected by the offending provision of the Ordinance in the State may seek remedy by filing writ petitions and plead that they were waiting for the judgment of this Court on the point. Obviously this would frustrate the very purpose of bar of laches in cases of writ jurisdiction".
' The petition in the first case referred to hereinabove was dismissed on account of laches by Peshawar High Court, however, the apex Court of Pakistan remanded the case after discussing the point of laches as well as limitation and observed as has been reproduced above.
' In the second case the petition was dismissed on the ground of laches because explanation offered therein was not proper and plausible.
' In State Bank of Pakistan's case the petition was allowed and the objection of laches was repelled by the Sindh High Court. In appeal the apex Court set-aside the judgment on the ground that respondents therein could not prove or furnish infringement of any right and they were declared guilty of laches in approaching relevant Court for redressal of their grievance.
' In 1995 SCR 259, referred to and relied upon by Abdul Rasheed Abbasi, the learned Advocate for respondent No.5, the apex court of Azad Jammu and Kashmir dismissed the petitions on the ground of laches because explanation submitted by the petitioners, therein, were not plausible in the wisdom of the apex Court, therefore, the appeals were accepted. In my estimation, the facts of that case are distinguishable, hence, the rule of law laid down in that case, in my humble view, is not attracted in the present case.
' In case titled Faisal Shafique v. Vice-Chancellor AJ&K University and 5 others (1999 MLD 175) this Court while explaining the effect of laches has also taken the view in para 22 as under:- "The High Court would normally in exercise of writ jurisdiction decline its aid to stale claims, where the claimant by sleeping over his right for a great length of time had acquiesced. As to what length of time would constitute laches? It depends upon the facts and circumstances of each case. This doctrine will not, however, be applied arbitrarily. The delay per SE would not be a ground for refusal of its aid. It will only be applied, where in the estimation of the Court other party due to such delay have been placed in such situation that now by exercising of the right, the other party will lose something which it has gained due to the delay caused by the party, seeking the remedy or aid from the Court. It would not be reasonable to place him in such a position by giving the remedy to the party. This view finds support from PLD 1985 SC (AJ&K) 93)."
' Though the explanation offered by the petitioner is not well worded but there is an explanation and considering the fact that the appointment of the private respondent has not been made in fair and transparent manner because his father was Chairman of the Selection Committee therefore, it cannot said in the circumstances of this case that the petition filed after a period of one year should be dismissed on account of laches.
' The contention of the learned Advocate for respondent No.5 that petitioner is stopped by his conduct because he has challenged the appointment after appearing in the test and interview, is also not tenable because it has not been proved that it was in the knowledge of the petitioner at the time of test and interview that the selection committee before whom he appeared for selection was headed by the father of the private respondent. In such cases the doctrine of acquiescence hardly debars a person from claiming his legal right. A reference can be made to case titled Umar Hayyat v. Azad Government of the State of the Azad Jammu and Kashmir and others 1999 PLC (C.S.) 93.
' In view of above, the petition is accepted and the appointment order of private respondent dated 8-1-2013 is declared to have been made without lawful authority. The post in question is declared vacant. The authority shall re-advertise the post and shall make appointment in a transparent manner.
' Before parting with the case, it may be stated that committees are constituted under the relevant rules and are supposed to perform their functions in a transparent and fair manner strictly in accordance with rules. Where a close relative of the Chairman/Members applies for appointment then it is enjoined upon such Chairman/Member to disassociate from the proceedings, so that no one can question the proceedings on that ground.