' 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 writ in the nature of prohibition is solicited against respondents jointly and severally from abrogating appointment order dated 20.04.2005, through which petitioner, on the basis of qualifying test and interview, was appointed as Primary Teachress B-7 in Girls High School Bandala, by District Education Officer Secondary Schools, Bhimber. A further direction is also solicited to declare appointment order of Mst. Nighat Sarwar, private respondent No,8, dated 01.12.2007, as forged, hence, nullity in the eye of law.
2. The summary of the case is that petitioner is first class State Subject of Azad Jammu and Kashmir, who is domicile holder of Bandala, Tehsil Samani and is qualified as M.A; B.Ed. (1st Division). As per claim of petitioner, she participated in test and interview and on recommendation of respective selection committee was appointed against the post of Primary Teachress in Government Girls High School Bandala, vide order dated 20.04.2005. The petitioner was thereafter posted from Girls High School Bandala, to Girls High School Darhal Gaggan, vide order dated 25.04.2005, however, she was again posted at present station i.e, Girls High School Dal Bandala. As petitioner passed M.A; B.Ed. (1st Division), hence, respondent No,5 Also granted her running scale B- 09 vide order dated 22.02.2008. The petitioner on the basis of the aforesaid appointment order had continuously been performing her duties and also getting salary as permanent employee of Education Department, as per verification of Head Mistress Government Girls High School Dal Bandala, dated 29.03.2010. It is stated that official respondent No,2, Director Public Instruction Schools, issued temporary appointment order of private respondent No,8, against the post occupied by petitioner on 01.12.2007. The aforesaid appointment order of private respondent No,8 was endorsed by District Education Officer Elementary and Secondary Schools Bhimber, on 04.12.2007. However, the aforesaid endorsement was recalled and in this regard a report was also issued by the aforesaid authority on 11.01.2008. It is further stated that as respondents under political pressure bent upon to abrogate lawful appointment order of petitioner, after qualifying more than four years service, hence, she constrained to file the instant constitution petition.
3. After admission of writ petition the official respondents were summoned for filing written statement, however, despite obtaining several opportunities they failed to do the needful, therefore, there defence was closed vide order dated 18.09.2012. However, the writ petition has been resisted by private respondent No,8, through written statement, wherein it is stated that petitioner has got no locus-standi to file the instant writ petition. It is maintained that petitioner has not invoked jurisdiction of this Court with clean hands. It is further alleged that petitioner suppressed material facts from the Court, therefore, she is not entitled to discretionary relief of writ jurisdiction. It is maintained that on the basis of qualification of petitioner as M,A, B.Ed. (1st Division), she appeared for test and interview pertaining to the post of Primary Teachress B-07, however, unlawfully appointed against the post of Oriental Teachress. It is further stated that petitioner was never transferred who submitted forged brder pertaining to her posting. It is claimed that petitioner was appointed against the post of Oriental Teachress B-09 in Government Girls High School Bandala, however, stated that she was performing her duties in Government Girls High School Dal Bandala, where in fact the answering respondent was appointed. It is further stated that the answering respondent filed a writ petition before this Court, which was accepted and she has been performing her duties against the post in question for more than five years, hence, prayed for dismissal of writ petition.
4. Raja Muhammad Arif Rathore, the learned counsel for petitioner, strenuously argued that his client being qualified as M. A; B.Ed. (1st Division), after passing test and interview, was appointed on the basis of merit as Primary Teachress B-07 and adjusted against the post Oriental Teachress in Government Girls High School Bandala vide order dated 20.04.2005, who after three years period was also granted running pay scale B-09 by the competent authority vide order dated 22.02.2008.
He further argued that petitioner was granted salary from Government Girls Middle School Dal Bandala till 28.02.2010, however, private respondent No,8 obtained forged, fabricated and fraudulent order dated 01.12.2007 and thereafter also obtained an ex-parte judgment dated 16.10.2009, from this Court by practicing fraud and misrepresentation. He while referring inquiry report, conducted by Deputy Director Elementary and Secondary Schools, Muzaffarabad, dated 25.08.2008, submitted that order dated 01.12.2007, pertaining to appointment of private respondent No,8 was never issued from the concerned office of Education Department, who committed fraud, hence, by recalling judgment supra of this Court, aforesaid order dated 01.07.2007, be declared as nullity in the eye of law and necessary writ of prohibition be issued against the official respondents from abrogating order of appointment of petitioner dated 20.04.2005.
5. Ch. Muhammad Riaz, the learned counsel for private respondent vehemently argued that his client was appointed by accepting her departmental appeal by D.P.I. Schools vide order dated 01.12.2007, who has continuously been performing her duties against disputed post, hence, writ petition is bad in law. He maintained that petitioner on the basis of test and interview was appointed as Primary Teachress B-07 by District Education Officer Bhimber vide order dated 20.04.2005, however, she was unlawfully adjusted against the post of Oriental Teachress B-09, hence, not entitled to any relief under law. The learned counsel for contesting respondent when confronted that as per report of Deputy Director Education Elementary Schools Muzaffarabad, dated 25.08.2008, no appointment order dated 01.12.2007, was issued in favour of his client and in this regard despite providing an opportunity no any reply was furnished on show cause then how the said respondent could claim her appointment? He submitted that in view of judgment of this Court dated 16.10.2009, the appointment order dated 01.07.2012, of private respondent, be presumed as validly issued, hence, submitted for dismissal of writ petition.
6. After hearing the learned counsel for parties at great length, we have perused the contents of writ petition, examined the appended documents with utmost care and have given our earnest thought to the points raised by the learned counsel for parties.
7. A contemplate perusal of record reveals that petitioner being qualified as M.A; B.Ed. (1st Division), was appointed against the post of Primary Teachress B-07 in Government Girls High School Bandala, however, adjusted against the post of Oriental Teachress B-09, vide order dated 20.04.2005. As per record, she was latter on posted in Government Girls High School Darhal Gaggan, by District Education Officer Secondary Schools Bhimber, vide order dated 25.04.2005. It appears that later on, petitioner was posted in Government Girls Middle School Dal Bandala, where on recommendation of District Education Officer Samahani, she was granted running pay scale B- 09, by the competent authority, vide order dated 22.02.2008. As per verification, issued by Head Mistress Government Girls Middle School Dal Bandala, petitioner remained present in the aforesaid School till 29.03.2010, who was also paid salary till 28.02.2010. The appointment order of petitioner was not controverted by the official respondents through written statement whose defence was closed vide order dated 18.09.2012. The private respondent also not controverted appointment of petitioner through written statement. As petitioner failed to produce advertisement merit list and recommendation of respective selection committee with writ petition, therefore, we solicited record pertaining to appointment of petitioner from District Education Officer, Bhimber, who submitted report that post of petitioner was neither advertised nor any merit list was prepared, hence, we hold her appointment as temporary. The A petitioner, however, levelled allegation of forgery against private respondent No,8 that she obtained appointment order dated 01.12.2007, by committing fraud.
8. The private respondent No,8, however, claimed her appointment through order dated 01.12.2007, purportedly issued by D.P.I. Schools Elementary. As per report of District Education Officer Elementary Schools Bhimber, dated 11.01.2008, the aforesaid order was initially endorsed in her office, however, later on the same was recalled from the date of its issuance. The aforesaid authority also solicited report from Head Mistress Government Girls School Dal Bandala, pertaining to joining of the said respondent in the institution supra through script dated 11.01.2008. As per report of Head Mistress dated 21.01.2008, one retired Captain Muhammad Yagoob, who had shown himself as brother of Ch. Muhammad Fareed, Headmaster Government Boys High School Samahani, came to her along with Nighat Sarwar, private respondent No,8 and stated that appointment order dated 01.12.2007, of the aforesaid respondent was obtained by him through one Major of Ehtesab Bureau, hence, asked for her joining. It reflects from record that private respondent filed Writ Petition No,560/2008 titled Nighat Sarwar v. D.P.I. Schools and others before this Court on 23.09.2008 and an ex parte judgment was obtained by her on 16.10.2009, directing the official respondents to implement within one month her appointment order dated 01.12.2007.
However, it appears that Secretary Education Azad Jammu and Kashmir, Muzaffarabad, appointed Deputy Director Education (Elementary) Schools Muzaffarabad, as an Inquiry Officer to ascertain legality and veracity of certain appointments made in Districts Bhimber and Kotli including the appointment of private respondent No,8 dated 01.42.2007. After inquiry a report was submitted by the Inquiry Officer supra to Secretary Education on 25.03.2008. The relevant paragraph 01 of the aforesaid inquiry report pertaining to private respondent No,8 speaks as under:- {{URDU TEXT}} ' The aforesaid report when placed before this Court following order was passed on 09.12.2012:- 'The learned counsel for petitioner apprised that as per report of Deputy Director Education (Elementary) Schools Muzaffarabad dated 25.03.2008, no any appointment order of private respondent No,8 namely Nighat Sarwar, was issued by Education Department. However, she by practicing fraud obtained judgment from this Court dated 16.10.2009, whereby official respondents were restrained from cancelling her appointment order dated 01.12.2007. The counsel of aforesaid private respondent will show cause that as to why the said judgment may not be recalled as obtained through misrepresentation and practicing fraud. To come up for arguments on 18.12.2014.
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' The private respondent, however, failed to file reply on show cause notice, therefore, right of filing reply was closed vide order dated 10.02.2015, which is reproduced as follows:- "As per report of Deputy Director Education (Elementary) Schools dated 25.03.2008, no any appointment order of private respondent No,8 namely Mst. Nighat Sarwar, was issued "by Education Department. However, she by practicing fraud obtained judgment dated 16.10.2009, hence, a show cause was granted to the aforesaid respondent through counsel that as to why the judgment supra may not be recalled. However, nobody has appeared on behalf of private respondent No,8, therefore, right of filing reply on show cause is hereby closed. The official respondents were already proceeded ex parte vide order dated 18.09.2012. To come up for arguments on 18.02.2015. "
' A perusal of the aforesaid report dated 25.03.2008, furnished by Deputy Director Education (Elementary) Schools, Muzaffarabad, makes it abundantly clear that appointment order dated 01.12.2007, issued in favour of private respondent was forged and fabricated. The aforesaid respondent also failed to furnish any reply on the show cause which is clear manifestation of the fact that firstly she succeeded to obtain an order dated 01.12.2007, by committing forgery and then filed Writ Petition No,560/2008 titled Nighat Sarwar v. Director Public Instruction Elementary Azad Jammu and Kashmir, Muzaffarabad and others, before this Court on 03.09.2008 and obtained judgment by practicing fraud on 16.10.2009. The operative part of the said judgment is reproduced as under:- "Thus, in view of above, by accepting this writ petition, the official respondents are directed to implement the petitioner's appointment order dated 01.12.2007 within one month and the Registrar of this Court should be intimated accordingly. However, the Secretary Education is hereby directed to take necessary action against the respondents in accordance with law and rules on the subject. A copy of this order shall be sent to Secretary Education for necessary steps. This petition stands disposed off in the terms as indicated above. "
' After examining record and report of Deputy Director Education (Elementary) Schools, Muzaffarabad (Inquiry Officer) dated 25.08.2008, we are of the considered view that appointment of private respondent No,8 through order dated 16.10.2009, was forged, fabricated and fraudulent, hence, we declare the same as nullity in the eye of law. However, as she succeeded to obtain judgment dated 16.10.2009, by fraud, therefore, the same is liable to be recalled accordingly. The proposition that whether a decree or order obtained by committing fraud from the Court of law can be recalled came under consideration before the apex Court of Pakistan in case titled The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others [PLD 1975 (SC)
331], wherein at page 345 of the report it was held as under:- "It seems to us that while there are cases in which the power of a Court or tribunal of special or limited jurisdiction to suo motu recall or review an order obtained from it by fraud has been doubted, yet the preponderance of judicial authority is in favour of conceding such a power to every authority, tribunal or Court on the general principle that fraud vitiates the most solemn proceedings, and no party should be allowed to take advantage of his fraud. There can be no rational basis for discriminating between the powers available in this behalf to a Court of general jurisdiction and a Court or tribunal of special or limited jurisdiction, for in either case the effect of fraud is the same, and the duty to undo that effect must lie on the authority on which fraud is practiced. We are, therefore, of the view that even a tribunal of limited or special jurisdiction has the power to suo motu recall or review an order obtained from it by fraud. "
' The aforesaid view was reiterated by the apex Court of Pakistan in case titled Government of Sindh through the Chief Secretary and others v. Khalil Ahmed and others [1994 SCM R 782]. At page 790 of the precedent case, it was opined as follows:- 'Lastly, we are conscious of the general principle that fraud vitiates even the most solemn proceedings and that the Courts of General jurisdiction are competent to suo motu recall decrees obtained from it by fraud, as held in Chief Settlement Commissioner v. Muhammad Fazil (PLD 1975 SC 331) and ordinarily we would have remanded the case to the trial Court, for further proceedings, in the matter, but as the claim of the plaintiff is fraudulent which is apparent from the record, the remand of the case in our view would be sheer wastage of time and merely an exercise in futility.
' For the forgoing reasons, we accept this appeal set aside the impugned judgments and decrees passed by the learned Judge of the Sindh High Court and dismiss plaintiffs suit with costs throughout."
The query is, therefore, answered that in case of obtaining any order or judgment through committing fraud can be recalled by the Court of law I even suo motu.
9. We for our own satisfaction also sent for record of departmental appeal filed by the private respondent No,8 from D.P.I. Schools Elementary and Secondary, Muzaffarabad. A perusal of the record reveals that no any departmental appeal was filed by the said respondent. The relevant record is consisting of various correspondence and reports with unilateral voice about framing forged order dated 01.12.2007, by the private respondent. Therefore, we have no hesitation to hold that order of appointment dated 01.12.2007, was obtained by the said private respondent through practicing fraud and committing forgery. As the said respondent on the basis of forged order dated 01.12.2007, has been receiving salary, hence, we are constrained to direct the official respondents to recover the amount received by respondent No,8 within two months and pay the same to petitioner. The registration of an F.I.R. Against the aforesaid respondent shall also serve the ends of justice.
10. The crux of above discussion is that by accepting the instant writ petition the official respondents are hereby directed to advertise the disputed post within three months from the receipt of the instant judgment and fill in the same on the basis of merit and recommendation of respective selection committee. However, till selection process, the temporary appointment of petitioner dated 20.04.2005, shall not be abrogated. The petitioner can also apply for the post in question as per rules. In case of over age she will be granted relaxation of upper age as per the Azad Jammu and Kashmir (Relaxation of Age Limit) Rules, 1997. The judgment dated 16.10.2009, however, obtained by private respondent No,8 in Writ Petition No,560/08 titled Nighat Sarwar O.T.
Teachress v. D.P.I. Elementary Azad Jammu and Kashmir, Muzaffarabad, by practicing fraud, therefore, the same is recalled. The official respondents are directed to recover salary from private respondent No,8, which has been received by her on the basis of forged and fabricated order dated 16.10.2009, within two months and pay the same to petitioner. The official respondents are also directed to get register an F.I.R. Against private respondent No,8 for preparing and maneuvering forged order dated 01.12.2007. The writ petition is accepted in the manner as indicated herein above.