M. TABASSUM AFTAB ALVI, J.--- The supra titled writ petitions have been addressed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974.
2. As common questions of facts and law involved in the instant writ petitions therefore proposed to decide the same through this single judgment.
3. The summary of Writ Petition No.2273 of 2014 is that petitioners Muhammad Azeem Mujadadi, Muhammad Binyameen, Syed Tassadaq Hussain Shah and Muhammad Ashraf, were appoin ted as Tehsil Qazis B-17 on ad hoc, basis who are performing their duties as such in different Courts of Azad Jammu and Kashmir . The ad hoc service of petitioners, as per their claim, is more than 21, 9, 11 and 8 years respectively . After advertisement of certain posts of Tehsil Qazis B-17 the aforesaid petitioners being qualified applied for the same and Public Service Commission-respondent conducted their written examination in May, 2013, who were interviewed in October , 2014.
The petitioners could not qualify for appointments, however , they challenged the selector process through writ petition titled Syed Tassadaq Hussain Shah and others v. Azad Government and others. It is stated that the Public Service Commission has advertised vacant posts of Tehsil Qazis B-17 in which test and interview will be held in near future and allegedly petitioners also came to know that a summary pertaining to creation of new posts of Tehsil Qazis is also under process, hence, through the instant writ petition, they solicited to restrain competent authority from terminating their ad hoc service.
4. The respondent after admission of writ petition despite service failed to file written statement therefore, proceeded ex-parte vide order dated 26-1-2015.
5. The writ petition, however , has been opposed by intervenes Abdul Malik and 7 others through an application addressed under rule 37 of the Azad Jammu and Kashmir High Court Procedure Rules, 1984. It is averred that requisition of 12 vacant posts of Tehsil Qazis B-17 was sent to the Public Service Commission, which were published through consolidated advertisements No.03/201 1 and 01/2012. The petitioners and intervenes participated in test and interview conducted by the Public Service Commission. It is maintained that after selection process recommendations of intervenes have been sent by the Public Service Commission to the competent authority , however , due to tendency of writ petitions and stay orders issued in certain cases they could not be appointed. It is further stated that petitioners participated in test and interview conducted by the Public Service Commission, who could not attain merit position, therefore, they are stopped by their conduct to file the instant writ petition, hence, prayed for dismissal of writ petition.
5. The brief facts of Writ Petition No.228 5 of 2014 are that petitioner Muhammad Binyameen, is first class State Subject of Jammu and Kashmir , who is fallen in category of refugee of Jammu and Kashmir settled in Pakistan. It is maintained that 3 posts of Tehsil Qazis B-17, were advertised by the Azad Jammu and Kashmir Shariat Court, to fill in the same on ad hoc basis. The petitioner on recommendations of respective Selection Committee, was appointed as ad hoc Tehsil Qazi B-17 vide notification dated 4-8-2003. The aforesaid ad hoc appointment had continuously been extended who was granted last extension of his ad hoc appointment vide notification dated 9-6- 2014. It is stated that the Public Service Commission, promulgated 8 posts of Tehsil Qazis B-17, through advertisement No.03/201 1 whereby , inter-alia, 02 posts of Tehsil. Qazis B-17, were advertised against allocated quota of refugees, settled in Pakistan. Through another advertisement No.01/2012, 01 more post of Tehsil Qazi B- 17 reserved for refugees of 1989 was also advertised. The petitioner being qualified applied against the allocated quota of refugees and after obtaining test and interview was placed at serial No.1 of waiting merit list prepared by the Public Service Commission. It was alleged that petitioner submitted representations to respondents immediately after publishing advertisemen ts No.3/201 1 plus 1/2012 and craved that quota of the refugees settled in Pakistan was not determined in legal manner who was granted an assurance to ascertain the correct quota of refugees settled in Pakistan and till then he would not be disturbed from the present assignment. The petitioner upon the aforesaid assurance participated in test and interview conducted by the Public Service Commission, however , he could not be appointed against the post of Tehsil Qazi B-17 despite falling at serial No. 1 of waiting merit list. It is alleged that 03 more posts pertaining to quota of refugees settled in Pakistan, were withheld by respondents, hence, he solicited appointment on regular basis against any of the aforesaid 03 withheld posts through the instant constitution petition.
7. The writ petition has been resisted by respondents through written statement, wherein it is stated that petitioner has got no longstanding to file the instant writ petition, as he failed to retain merit position in the selection process conducted by the Public Service Commission. It is stated that the Public Service Commission, advertised 3 posts of Tehsil Qazis B-17 against quota of refugees settled in Pakistan and petitioner applied against the aforesaid posts, however , after test and interview he remained failed to occupy merit position who was placed as an alternate candidate in the waiting merit list of refug ees settled in Pakistan. It is further stated that petitioner participated in selection process of the Public Service Commission, without any objection and accepted all the conditions, therefore, he acquiesced his right, if any, it is averred that as there were only 3 permanent vacant posts in the concerned discipline against quota of refugees, which were duly advertised for initial recruitment, hence, prayed for dismissal of writ petition.
8. The summary of Writ Petition No 2320 is that petitioner Muhammad Azeem Mujadadi, was appointed on ad hoc basis as Tehsil Qazi B-17, vide notification dated 18-10-1993. The aforesaid ad hoc appointment of petitioner was time and again extended by the authority and his last extension notification was issued on 25-9-2014. The aforesaid petitioner by repeating facts of Writ Petition No.2285 of 2011 submitted that although he could not obtain merit position against any of the 3 adver tised posts of Tehsil Qazis B-17, however , solicited direction against the official respondents to calculate and determine quota admissible to refugees settled in Pakistan and prayed for his regular appointment on the basis of falling in waiting merit list of the Public Service Commission.
9. The official respondents and private respondent No.5, controverted the contents of writ petition through separate written statements on similar grounds as mentioned in written statement filed by official respondents in Writ Petition No.2285 of 2014 which are not repeated for the sake of brevity and convenience.
10. Raja Muhammad Hanif Khan, Raja Sajjad Ahmed Khan and Bashir Ahmed Mughal, the learned counsel for petitioners, vehemently argued that as petitioners after conducting test and interview have been placed in the waiting merit list framed by the Public Service Commission, therefore, they can be directed to be appointed on regular basis against withheld posts. However , the learned counsel appearing on behalf of petitioners in Writ Petitions Nos.2285 of 2014 and 2320 of 2014 were asked that in presence of first Writ Petition No.2273 of 2014, how petitioners Muhammad Binyameen and Muhammad Azeem Mujadadi, have filed the aforesaid two later writ petitions? The learned counsel submitted that both the petitioners failed to apprise them about filing of earlier writ petition. The learned counsel for the aforesaid petitioners were also asked that the said petitioners took specific plea in writ petitions that they had filed representations for determination of quota before advertisement of 3 posts of Tehsil Qazis B-17, however , concerned authority declined in written statement about filing of any representation, hence, the relevant record of both the petitioners as well the concerned file of requisitions were sent for from the office of the Shariat Court, hence, they were asked to ascertain representations filed by their clients, however , they submitted that about filing representations the paragraphs of writ petitions were inserted on the basis of information supplied by the aforesaid petitioners. The learned counsel, however , submitted that as aforesaid petitioners have served as Tehsil Qazis B-17, since, 2003 and 1993 respectively , therefore, on the basis of their long service necessary direction for their regular appo intments may be commanded and prayed for acceptance of the aforesaid petitions.
11. Raja Sajjad Ahmed Khan, the learned counsel for petitioners Muhammad Azeem Mujadadi and 3 others also appearing in Writ Petition No.2273 of 2014, was confronted that how petitione rs Muhammad Binyameen and Muhammad Azeem Mujadadi, filed subsequent writ petitions in presence of their first petition, who submitted that in previous writ petition only competent authority was impleaded party while in later two writ petitions Azad Government and Public Service Commission were also imp leaded party , therefore , second writ petitions were not barred by law. The learned counsel, however , in the given eventuality after concluding arguments came at rostrum and moved an application for withdrawal of Writ Petition No.2273 of 2014 to the extent of petitioners-Muhammad Binyameen and Muhammad Azeem Mujadadi and prayed for acceptance of the aforesaid writ petition to the extent of remaining petitioners viz. Syed Tasadaq Hussain Shah and Muhammad Ashraf ad hoc Tehsil Qazis.
12 Ch. Shoukat Aziz, the learned Additional Advocate-General, strenuously argued that petitioners participated in test and interview without any objection on the basis of advertisements published by the Public Service Commission, however , could not earn merit position, therefore, they cannot challen ge the selection process due to principle of acquiescence. The learned counsel further submitted that petitione rs Muhammad Binyameen and Muhammad Azeem Mujadadi, never filed representations before the competent authority as alleged by them, who committed misrepresentations, therefore, they are not entitled to discretionary relief of writ jurisdiction. The learned counsel in support of his contentions relied upon case titled Azad Government v. Haji Mir Muhammad Naseer and 10 others [1999 PLC (C.S) 1 173].
In case of Azad Government , supra, it was held by the apex Court that appointments on the basis of advertisement and selection process, conducted, before creation of posts were illegal.
13. Ch. Muhammad Mushtaq, appearing on behalf of private respondent No.5 in Writ Petition No.2320 of 2014 owned the arguments advanced by the learned Additional Advocate-General.
14. Raja Gul Majeed Khan, the learned counsel for interveners, owned the arguments of the learned Additional Advocate General and added that intervenes are selectness of the Public Service Commission, however , petitioners could not qualify for the advertised 'posts, hence, his clients cannot be stopped from regular appointments on the basis of baseless writ petitions filed by petitioners and submitted for dismissal of the same.
The learned counsel in support of his contention referred a case titled Ehsan-ur -Rehman and 10 others v. Arshad Ali Khan and 5 others 2012 PLC (C.S.) 795 .
In case of Ehsan-ur-Rehman and 10 others, ibid, it was opined by the apex Court that concerned private respondents participated in written test and interview conducted by the respective Selection Committee who had not attained merit position, hence they were stopped from challenging selection proceedings.
After hearing the learned counsel for parties at great length, we have perused the contents of writ petitions, examined the appended documents and have given our earnest thought to the points raised by the learned counsel for parties.
A contemplate perusal of record reveals that Muhammad Azeem Mujadadi, after expiry of earlier ad hoc period was again appointed on ad hoc basis as Tehsil Qazi B-17, for six months vide notific ation dated 5-9-2014. However , petitioners Muhammad Binyameen, Syed Tassadaq Hussain Shah and Muhammad Ashraf, were similarly appointed as ad hoc Tehsil Qazis B-17 for six months period by the competent authority , vide notification dated 9-6- 2014. A glance perusal of condition No."A" of the aforesaid notifications makes it abundantly clear that it was specifically inserted in their ad hoc appointments' notifications supra that in case of returned candidates of the Public Service Commission', their ad hoc appointments could be terminated before completion of the aforesaid period. As per condition No."D" of the aforesaid notifications the competent authority can terminate their ad hoc services without serving any notice at any time. The aforesaid conditions were accepted by petitioners, therefore, according to our considered view now they cannot turn around from the said conditions due to principle of acquiescence. It is settled principle of law that ad hoc appointment does not create any right for regular service and such appointee can be removed at any time. The aforesaid point was considered by the apex Court in case titled Munawar Ahmed v. Azad Government of the State of Jammu and Kashmir through its Chief Secretary Muzaffarabad and 4 others (2013 SCR 280). At pages 295 and 296 of the precedent case, it was held as under:--- "The record produced in this case clearly shows that the Education Department, inspite of clear directions by this Court in a number of cases, is acting in an arbitrary manner . The ad-hoc appointm ent orders passed in favour of the petitioner appear to be against clear legal provisions and against the judgments of this ,Court. The Court particularly shows serious concern on notification dated 20-12-201 1 No. S.E. Colleges 1(11)/2008, whereby in an arbitrary manner the ad ho lecturers/ DPs/Librarians/Computer instructors, (ladies and gents cadre), whose period of ad hoc appointment has expired even, on or before 30-11-201 1, their ad ho appointments have been extended from the date of expiry of ad hoc period on 30-11-201 1. This order is in derogation to the provisions of Azad Jammu and Kashmir Civil Servants Act and Rules made there under . This order also offends the judgments of this Court delivered in the cases referred to above and the other cases.
10. I have noted that the petitioner remained serving as Lecturer in Government Boys Inter College Dharoti Mohra Tehsil Fatehpur Thakiala, District kotli during the period when no valid order of ad hoc appointment was in existence. For example, vide notification dated 12-3-201 1, the services of petitione r were extended on ad-ho basis from 3-1-201 1 for a further period of six months, which expired on 2-7-201 1. There was no order in his favour from 2-7-201 1 onward, but the Principal allowed him to remain present and serve in the College till issuance of order on 20-11-201 1 which expired on 12-12-201 1. There was no order in his favour from 14-12-201 1 to 28-5-2012 but he remained serving in the college. The Principal has taken the position that it was verbally ordered by Secretary Education Colleges that the cases for ad ho appointments are in progress, he allowed the petitioner to serve in the college. This is clearly against the rules. All the orders brought on record by the Principal and particularly the order dated 20-12-201 1, is mockery to law .
11. The Principal has also brought on record the notification issued on 20-5-2012, whereby services of the petitioner have been extended from 21-12-201 1, for another period of six months, in presence of this notification, the apprehension of the petitioner in writ petition filed on 27-6-201 1 appears to be false and without foundation. The order passed by the High Court is perfect ly legal. No case for grant of leave to appeal is made out by the petitioner .
Leave to appeal could not be granted in each and every case to give false hope to a party , therefore, the instant petition for leave to appeal is dismissed."
17. The petitioners Muhammad Binyameen and Muhammad Azeem Mujadadi, have filed Writ Petitions Nos.2285 of 2014 and 2320 of 2014, in presence of their first Writ Petition No.2273 of 2014. As per Order XXIII, rule 1 of Civil Procedure Code, in case of formal defect or due to other sufficient grounds in their first writ petition, they could withdraw the same subject to filing of fresh one, which rule speaks as follows:--- "1. Withdrawal of suit or abandonment of part of claim. - (1) At any time after the institution of a suit the plaintiff may, as against all or any of the defendants, withdraw his suit or abandon part of his claim.
(2) Where the Court is satisfied.
(a) that a suit must fail by reason of some formal defect, or
(b) that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permi ssion to withdraw from such suit or abandon such part of a claim with liberty to institute a fresh suit in respect of the subject matter of such suit or such part of a claim.
(3) Where the plaintiff withdraws from a suit, or abandons part of a claim, without the permission referred to in sub- rule (2), he shall be liable for such costs as the Court may, award and shall be precluded from instituting any fresh suit in respect of such subject matter or such part of the claim.
(4) Nothing in this rule shall be deemed to authorize the Court to permit one of several plaintiff to withdraw without the consent of the others."
Likewise according to provisions of Order II, rule 2 of Civil Procedure Code, it was essential for petitioners to include the whole claim in their previous writ petition which is reproduced as under:- "2. Suit to include the whole claim.--- (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.
Relinquishment of part of claim.--- (2) Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not after words sue in respect of the portion so omitted or relinquished.
Omission to sue for one of several reliefs .--- (3) A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted."
At the time of filing Writ Petitions Nos.22 85 of 2014 and 2320 of 2014, admitted ly the first Writ Petition 2273 of 2014 on the same facts and similar grounds of the said petitioners was pending before the Court for adjudication.
At the then time both the petitioners after appearing before the Public Service Com mission, were placed at waiting merit list, therefore, all the grounds raised by them in subsequent writ petitions were available to them at the time of filing previous Writ Petition No.2273 of 2013. The aforesaid petitioners, however , relinquished various grounds in the earlier writ petition, hence, their subsequent Writ Petitions Nos.2285 of 2014 and 2320 of 2014, according to our considered view, are barred under Order XXIII, rule 1 read with Order II, rule 2 of Civil Procedure Code. The variance of parties also cannot be helpful to petitioners, as all parties could be imp leaded in their previous writ petition.
18. The aforesaid petitioners are also not entitled to discretionary relief of writ jurisdiction, who without disclosing their earlier writ petition, filed the subsequent writ petitions by suppressing facts, hence, not invoked jurisdiction of this Court with clean hands. An identical point came under consideration before the Hon'ble Supreme Court in case titled Abid Hussain Jafri and others v. Azad Government and others 1998 PLC (C.S.) 141 wherein at page 144 of the report, it was held as follows:--- "... This is well settled principle of law that a person seeking redress of his grievance by resorting to the writ jurisdiction, must come with clean hands. If it is found that the person seeking relief by way of writ petition has no legal or moral case, then irrespective of the fact that the Chief Secretary or, for that matter , any other departmental authority is bound to obey the orders of the Prime Minister , the High Court may refuse to issue a writ of mandamus in exercise of its discretionary powers vested in it. As the order which was sought to be implemented by the appellants was passed in violation of the principle of audi alteram partem, the High Court could rightly refuse to issue a writ of mandamus for the implementation of the same irrespective of the fact as to whether the Secretary Works was bound to carry out the same or not. The writ jurisdiction cannot be exercised in perpetuation of an illegal order ."
The aforesaid view was reiterated by the apex Court in case of Kashmir Mining and Development Works v. Azad Government and 5 others 1997 CLC 1771 . At pages 1773 and 1774 of the report it was opined 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 Govern ment 1998 PLC (C. S.) 141 and Bashir Ahmad v. Additional 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."
The similar view was expressed by the Peshawar High Court, in case titled Ali Muhammad and others v. Admission Committee, University of Engineering and Technology , Peshawar and others [PLD 1982 Pesh. 106], wherein at page 1 10 of the precedent case it was observed as follows:--- "There is no denying the fact that all the petitioners in Writ Petition No.309 are holders of B. Sc. Degree in the First Division and they are Third Divisions in F. Sc. (pre-Engineering Group). Ghulam Rasool and Raza Khan of Writ Petition No.352, however , have different academic qualification. Both of them asserted in the writ petition that they had passed their B. Sc. Examination in the First Division. A look at Annexure A-1 shows that Ghulam Rasool had passed his B. Sc. Examination in Second Division. The respondents in their comments categorically alleged that Raza Khan had passed B.A. and not B.Sc. Examination. There is nothing on the record to show that the petitioner Raza Khan had controverted this allegation. It is manifest that both of them have not come to this Court with clean hands. They are guilty of suppression of material facts deliberately and, as such, the discretionary remedy would not be available to them. It is observed in Wali Muhammad v. The Secretary Home Department, Government of Balochistan, Quetta and 2 others PLD 1972 Quetta 33, that as a constitutional petition is a discretionary remedy , it is not available to the petitioner because he has not come with clean hands. In Abdul Rashid v. Pakistan and others 1969 SCMR 141, the petitioner bad suppressed a material fact in his petition and it was held that the High Court was justified in dismissing the petition on the ground that he had not come with clean hands."
The application moved on behalf of petitioners and Muhammad Binyameen and Muhammad Azeem Mujadadi for withdrawal of Writ Petition No.2273 of 2014 is belated, therefore, we are not inclined to allow the same. Even otherwise according to our considered view, withdrawal of earlier writ petition at his stage cannot cure the defect of subsequent writ petitions which were filed without permission of Court, as postulated under Order XXIII, Rule 1 of Civil Procedure Code.
20. At this juncture, we also regret to observe here that petitioners Muhammad Binyameen and Muhammad Azeem Mujadadi, specifically pleaded in their writ petitions that at the time of advertisements Nos .3/2012 and 1/2013, through representations they requested the authority for determination of quota of refugees settled in Pakistan and an assurance was given them to do the needful upon the aforesaid representations, hence, they participated in the selection process. No any representation was appended by the aforesaid petitioners along-with their writ petitions.
The assertion of petitioners was emph atically denied by the competent authority in the written statement.
Therefore, we have sent for relevant record from the office of the Shari at Court and we found that no representations were filed by the aforesaid petitioners before the competent authority as alleged by them. The petitioners, therefore, committed misrepresentations and falsehood as well, hence, they are not entitled for equitable relief of constitutional jurisdiction even from this angle.
21. The nub of above discussion is that finding no substance in all the instant writ petitions, therefore, the same are hereby dismissed. Consequently application filed by petitioners Muhammad Binyameen and Muhammad Azeem Mujadadi, for withdrawal of Writ Petition No.2273 of 2014 is also rejected. As a result stay order granted in the aforesaid writ petitions are recalled. The intervenes who are selectees of the Public Service Commission shall be considered for regular appointments by the competent authority as per their inter se merit. The costs shall follow the eventuality . revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.