' AZHAR SALEEM BABAR, J. --- As common question of facts and law are involved in both the writ petitions so the same are heard together and disposed of through this single judgment.
2. Facts forming background of Writ Petition No, 497/2016 are that petitioners No, 1 and 2 are members of Central Bar Association Muzaffarabad and petitioner No, 3 is the owner of Sangola Publisher Lahore. It has been alleged that Managing Director, Teachers Foundation, Muzaffarabad has introduced two new books of Urdu/English Grammar for class three to eight, without permission of the Government of Azad Jammu & Kashmir just to accommodate their favourites. It has further been alleged that non-petitioner No, 1 issued a letter dated 01.01.2016 to Royal Educational Press, Rawalpindi for publication of 25,000/25,000 books of Urdu/English Grammar for class three to eight without lawful authority. It has been stated that Secretary Education Azad Jammu & Kashmir issued a circular dated 02.06.2015 by which a ban has been imposed on the books published by the Teachers Foundation. It has further been stated that Teachers Foundation under the shelter of political high-ups is going to introduce aforementioned books in the syllabus of class three to eight which is totally against the law, rules and regulation. The petitioners prayed that the non-petitioners may be directed to ban all these books in light of circular dated 02.06.2015.
A further prayer has also been sought against the non-petitioners to restrain from teaching these books in Government Schools.
3. The writ petition was contested by the non-petitioners by filing written statement. In the writ statement filed on behalf of non-petitioners No, 1 and 3 it has been stated that Azad Jammu & Kashmir Teachers Foundation is a statutory body whose functions are regulated by a Board of Governors, It has further been stated that vide order dated 03.11.2015, Board of Governors AJ&K Teachers Foundation has granted approval to prepare Urdu and English Grammar books. A copy of minutes of Board of Governors has also been attached which verifies the fact that Board of Governors has approved printing of Urdu and English Grammar (supporting allied material). It has been contended on behalf of the non-petitioners that circular dated 02.06.2015 is fake and bogus.
He has further explained that this circular has been issued by Section Officer Elementary and Secondary Education, whereas Secretary Elementary and Secondary Education is Vice-Chairman of Board of Governors of Teachers Foundation and Board of Governors under his chair has approved preparation/publishing of Urdu and English Grammar as supporting/allied material. The non-petitioners prayed for dismissal of the writ petition. Non-petitioner No, 9 filed separate written statement wherein it has been contended that the petitioner has no locus standi to file the instant writ petition because petitioners No, 1 and 2 are acting as agent of non-petitioner No, 3 who is a business rival of Shabir Hussain Shah, so question of public interest litigation does not arise. It has further been stated that the petitioners are not aggrieved persons in the eye of law. It has also been stated that the case at hand relates to contractual liabilities, so the writ petition is not competent. The non-petitioner denied the contents of writ petition and prayed for dismissal of the same.
4. Precise facts of Writ Petition No, 759/2016 are that petitioner is the Managing Director of Royal Educational Press, Rawalpindi who runs his business of printing of educational material. It has been stated that pro-forma non- petitioner entered into a contract with the petitioner on 12.02.2015 in regard to publication of Urdu/English Grammar Books of class three to eight. It has been explained that Teachers Foundation is empowered to enter into contract through his Managing Director under Teachers Foundation Act, 1997. It has been contended that in pursuance of agreement dated 12.02.2015, the petitioner has printed Urdu/ English Grammar Books of class 1 to 8 in the year 2015 and deposited Rs, 37,21,007/- in the account of pro-forma non-petitioner. It has further been contended that Board of Governors in its meeting held on 21st September, 2015, approved the agreement dated 12.02.2015. According to agreement, its period is for three years, It has also been contended that in pursuance of letter dated 01.01.2016, the petitioner has printed Urdu/English Grammar Books costing more than Rs, 50,00,000/- this year. It has been alleged that non- petitioners No, 3 and 4 issued a circular dated 02.06.2015 without hearing the petitioner just to frustrate the petitioner's lent right. The petitioner prayed that circular dated 02.06.2015 may be declared illegal, void, against the rules and without lawful authority.
5. The writ petition was contested by the non- petitioners by filing written statement. In the written statement filed on behalf of non-petitioner No, 5/Textbook Board, it has been contended that Teachers Foundation has published Urdu/English Grammar Books in violation of Textbook Board Act, 2014 and Textbooks and Learning Policy 2006, just to increase his unlawful business. It has further been contended that Grammar Books of class 1 to 10 are already available for students, so separate books are not required and that the students cannot be compelled to buy these books against the rules. It has been emphasized that Teachers Foundation is not authorized to publish any book on its own. It has further been stated that the Government has imposed ban on printing/publishing of Grammar Books by the Teachers Foundation. It has been stressed that preparation of textbooks is in the domain of Textbook Board. The non-petitioner prayed for dismissal of the writ petition. Non-petitioners No, 7 to 9 filed separate written statement, wherein it has been stated that the petitioner has no locus standi to file the instant writ petition. It has also been contended that the petitioner is not aggrieved person in the eye of law. It has been alleged that the petitioner entered into an unlawful contract with pro-forma non-petitioner. The non- petitioners denied the contents of writ petition and prayed for dismissal of the same.
6. I have heard learned counsel for the parties and learned Additional Advocate General.
Arguments furnished on behalf of Teachers Foundation and Shabir Hussain Shah, non- petitioner/rival petitioner are almost the same. Some preliminary objections have been raised by Barrister Humayun Nawaz Khan and Sardar K.D. Khan, Advocates that writ petition filed by Muhammad Tanveer Mughal and 2 others is hit by lathes and that the writ petition has been filed in violation of Rule 32 of the Azad Jammu & Kashmir High Court Procedure Rules, 1984. It may be mentioned here that Shabir Hussain Shah, non-petitioner has raised a further objection that Muhammad Tanveer Mughal and others are not aggrieved person, so they do not have a right to file the instant writ petition.
7. Principle of laches does not attract to the case at hand for the reason that Muhammad Tanveer Mughal and others have prayed to the Court to direct the non-petitioners to ban the books in light of circular dated 02.06.2015. The writ petition has been filed on 22.02.2016, however, record attached with the memorandum of writ petition shows that Azad Jammu & Kashmir Teachers Foundation banned printing of Grammar Books for class 3 to 8 on 01.01.2016. Through this order Annexure "A"
Managing Director Royal Education Press, Rawalpindi has been ordered to provide some 3,00,000/- books for Teachers Foundation, Muzaffarabad. Although non-petitioners have called in question the genuineness of printing order dated 01.01.2016, however, it finds support from an agreement between Teachers Foundation and Royal Educitional Press, so, it can be safely presumed that Royal Educational Press could not have provided the required books without a formal order of Azad Jammu & Kashmir Teachers Foundation. According to contentions of the writ petition a continuing wrong is being committed which has resulted into printing of Grammar Books in a large quantity, so principle of laches does not attract in the given situation.
8. So far as violation of Rule 32(2) is concerned, it is worth mentioning that the petitioners have relied on circular dated 02.06.2015, whereby a ban has been imposed on printing/publishing of Grammar Books by private publishers, An attested copy of the impugned circular has been attached as Annexure "B"". It finds that circular has been issued by Secretariat Elementary and Secondary Education Govt. Of Azad Jammu & Kashmir and copy of the circular is found attested by Section Officer of the Secretariat. Rule 32(2) of the High Court Procedure Rules, 1984 requires that it is essential for a petitioner to file attested copy of the impugned order or notification. In the instant case, the petitioner has provided a copy of the impugned circular dated 02.06.2015, so argument advanced by the non-petitioners on the point cannot be concurred with. Case-law cited on the point of laches and violation of Rule 32(2) is, therefore, not applicable to the instant case. 2014 SCR 291 and 2014 SCR 816 have been referred on the point of laches and 2003 SCR 260 and PLJ 2013 SC AJ&K 148 have been relied upon by the Teachers Foundation.
9. Barrister Humayun Nawaz Khan, on behalf of Teachers Foundation has further referred to a recent judgment of the High Court in a case titled Muhammad Akhtar and others v. Azad Govt. And others and has contended that the petitioners are not aggrieved in the eye of law. It may be observed here that Teachers Foundation in its written statement has not raised any such objection, however, non-petitioner No, 9 has objected that the petitioners are not aggrieved in the eye of law, so common arguments of learned counsel for the non-petitioners may be considered on this point.
In the cited case educational package introduced by Government of Azad Jammu & Kashmir was challenged by the petitioners and Full Bench of the High Court in its judgment dated 31.03.2016 concluded that petitioners are not aggrieved in the eye of law.
10. In case titled Muhammad Akhtar and others v Azad Govt. And others decided by High Court of Azad Jammu & Kashmir on 31.03.2016, Full Bench of the High Court of Azad Jammu & Kashmir has concluded that petitioners are not aggrieved persons and do not have a locus standi to file the writ petition. In view of contents raised in the writ petition and prayer sought by them. The High Court concluded that the petitioners in that case could not even explain that how are they aggrieved of the educational package introduced by the Government. By placing reliance on PLJ 2002 SC AJ&K 1082, the High Court further reproduced the relevant extract of the judgment of Supreme Court, wherein it was concluded that there is a wide difference between a writ of certiorari, a writ of habeas corpus and a writ of quo-warranto. Instead of writ of habeas corpus and writ of quo- warranto, which can be invoked by any person, the other writs can be prayed for only be an aggrieved person. The High Court of Azad Jammu & Kashmir further relied on PLD 1987 AJ&K 88, wherein it was concluded that ordinarily an aggrieved person is he who suffers the grievance by loss of any interest and right in consequence of an act or omission caused by an order, decision or action of a Tribunal or authority or person. The High Court of Azad Jammu & Kashmir reproduced paragraph 1 of the writ filed by Muhammad Akhtar and 18 others which clarifies that the petitioners have not pointed out any grievance against the act of Government. In the instant case, two of the petitioners are members of legal fraternity who are supposed to uphold the supremacy of law. It has been concluded by the superior Courts of the sub-continent that whenever violation of a substantive law or Constitution is alleged to have been committed, the Lawyers have a right to challenge such act or omission by way of writ petition. Supreme Court of Azad Jammu & Kashmir in a Genuine Rights Commission case [1999 SCR 1] has concluded that it is correct that none of rights culminating in impugned judgment has been couched as a writ of quo-warranto but all the same it cannot he said that the petitioners-respondents were not aggrieved persons, specially so when apart from being leading members of society, they are practicing lawyers and are directly interested in constitutionality of Courts in view of their day to day professional duties. View of Supreme Court on question of locus standi in maintaining a writ petition under Section 44 of the Interim Constitution Act has been liberal one; if a person shows an injury to his right which may not be injury to a juristic right, he is entitled to invoke writ jurisdiction of High Court under aforesaid provision of law. In another case reported as PLD 2013 High Court AJ&K 34, it was concluded that it is not necessary for a petitioner in each case to be direct affectee of an action or inaction of public functionary. Despite locus standi or aggrieved person being sine qua none for maintainability of such petition, High Court in public interest litigation without . Treating a petitioner as aggrieved person could strike down any law, if found same to be violative of fundamental rights or Constitutional provisions.
11. In my view, contents of writ petition titled Muhammad Akhtar and others v. Azad Govt. And others are different from those raised in the instant writ petition. Petitioners No, 1 and 2 in the instant case are Lawyers and have a vested right to challenge violation of any law. It has been contended in the instant case that in violation of Azad Jammu & Kashmir Textbook Board Act, Teachers Foundation has published Urdu and English Grammar Books for class three to eight for the students of Azad Jammu & Kashmir. It has been alleged that vide section 11(2)(b) of Textbook Board Act, it is prerogative of the Textbook Board to publish syllabus books for students in Azad Kashmir. It has further been explained that Teachers Foundation has been functioning as publishers on behalf of Textbook Board in the recent years and some books published by Teachers Foundation with the consent of Textbook Board are still part of syllabus in educational institutions of Azad Jammu & Kashmir. It is the responsibility of members of legal fraternity to work for upholding the law of the land, so they are aggrieved persons in view of contents of the writ petition.
12. So far as petitioner No, 3 is concerned, he is also a printer/publisher. It has been claimed in the writ petition that Teachers Foundation has ordered printing of large quantity of books to non- petitioner No, 9 without inviting tenders, It transpires that Teachers Foundation or non-petitioner No, 9 has not attached any clipping of the newspaper, whereby tenders were invited for printing of these books, so right of fair competition of the petitioner has been infringed by not inviting bids for printing of the books in question. He is, therefore, an aggrieved person in the eye of law and has a locus standi to file the writ petition.
13. While diverting to merits of the case, it may observed that simple proposition that whether Teachers Foundation is authorized by law to publish/print Urdu/English Grammar Books or supporting/allied material, would resolve the controversy. Petitioners have relied on a circular dated 02.06.2015 issued by Secretariat Elementary and Secondary Education, which states that Urdu Grammar Books printed by private publishers or in particular Teachers Foundation has been banned. The Secretariat of Elementary and Secondary Education has intimated all the heads of educational institutions, administrative officers in District Elementary Board that textbooks printed by private publishers arid Teachers Foundation are neither part of syllabus and nor a part of scheme of study, so these would not be taught in class rooms. It has been objected by Mr. Karam Dad Khan, Advocate for private non-petitioner that this circular has not been notified under Rule 7 of the Rules of Business, so, it carries no legal value. This argument looks to have been misconceived because a circular is a general information by a superior to its subordinates in regard to some policy decision. It needs not to be routed under Rules of Business, however, it is necessary that a government notification has to be published in the official Gazette without which it would not have the force of law, A circular may have a binding force for a particular section of subordinates but it does not have a binding nature in general, whereas, Government notification is a general law and it has to be published in the official Gazette for information to general public. It is also worth mentioning that a circular needs not to be routed through Chief Secretary and also does not need approval of Executive Head to the government because of its nature, so argument of learned counsel cannot be concurred with.
14. In order to compare the functions and responsibilities of Azad Jammu & Kashmir Textbooks Board and Azad Kashmir Teachers Foundation, I have gone through the relevant laws. Azad Jammu & Kashmir Textbooks Board has been published under Act XXVI of 2014. The very preamble of the Act states the purpose of establishment of Textbooks Board which reads as under:--- "Whereas it is expedient to make arrangements for:---
(a) production and publication of:---
(i) textbooks for Classes 1 to XII;
(ii) supplementary reading material relating to text-books;
(iii) guide books for teachers;
(b) production of reference and research material in respects of problems relating to schemes of studies and preparation of textbooks; and
(c) conduct of research in the field of curriculum, textbooks and other reading material, in the manner hereinafter appearing.
Section 11(3) of the Act further provides that:--- "3. Powers and duties of the board and the framing of schemes.
(1)..
(2)..
(3) In particular, the Board may prepare schemes pertaining to all or any a the following matters:- --
(a) implementation of the educational policies of Government in respect of the production and publication of text-books, supplementary reading material and teaching aid:
(b) arrangement for the publication of text-books for all stages and types of education and teachers training courses as detailed hereunder namely:-
(i) Elementary Education;
(ii) Secondary Education;
(iii) Intermediate Education;
(iv) Diplomas in Physical Education, Diploma in Commerce, Diplomas Arts and Crafts and in such other training courses as may be prescribed by regulations;
(v) Courses of English Medium institutions;
(vi) Education of handicapped children;
(vii) Adult education;
(c) production of supplementary material relating to the text-books, for the stages and types of education enumerated under clause (b) above;
(d) production of reference and research material relating to the problems of curricula and preparation of text-books;
(e) the laying down of specification of text-books for their preparation and publication;
(f) control of the policy relating to:---
(i) distribution of text-books and other material and (sic)
' Education Ministers Conference. Clause 2.2 of the afore-cited plan states that Textbook Boards will invite Provincial/National publishers to register their interest or intent and specify for which subjects and grades they intend to develop and submit manuscripts.
' Clause 2.3 of the mentioned Plan further provides that the Textbook Board shall invite National/Provincial publishers to submit manuscripts and samples of school reading and learning material (other than textbooks) to the Textbook Boards for review and certification as recommended learning materials with age-wise and grade-wise classification. It has been further provided in sub-clause (ii) that for purchase and use of school reading and learning material (other than textbooks) in government schools the recommendation certificate of Textbook Boards shall be binding.
16. In view of the afore-mentioned provisions of Textbooks Board Act and National Action Plan, it can be safely concluded that publishing and printing of Textbooks and Printing Material falls within the exclusive domain of Azad Jammu & Kashmir Textbooks Board.
17. Now the question arises that whether Teachers Foundation is authorized under law to publish or print Textbooks or supporting/allied material for students in the territory of Azad Jammu & Kashmir.
Teachers Foundation Act, 1997, received assent of President on 25.10.1997 and has been published in the official Gazette on 29.12.1999. Teachers Foundation and the rival petitioner have relied on this Act by contending that Teachers Foundation is authorized under law to print/publish Supporting/Allied material for the benefit of students. Preamble of Teachers Foundation Act mentions the purpose of establishment of Teachers Foundation to improve financial and moral conditions of Teachers of Education Department of Azad Jammu & Kashmir. Aims and objectives of the Foundation have been mentioned in Section 4 of the Act, which provides low cost accommodation to the members to improve medical facilities, award scholarships to the dependents of the beneficiaries, to provide grants in case of marriage of the daughters and sons of the deserving members, to provide jobs to the retired beneficiaries and to do all such other things as are incidental or conducive to carry out the purposes and objectives of the Foundation.
(Underlined for emphasis)
18. An Executive Committee has been formulated under Section 9 of the Act, whose powers have been mentioned under Section 10. A perusal of all the provisions of Teachers Foundation Act does not transpire that Teachers Foundation has been vested with the powers of publishing or printing of syllabus books and supporting/allied material for students in Azad Jammu & Kashmir without approval of Azad Jammu & Kashmir Textbooks Board. No such approval has been assigned to Teachers Foundation for publishing of 3,00,000/- Urdu/English Grammar Books for class three to eight as has been ordered by Teachers Foundation. It is, therefore, concluded that Teachers Foundation has ordered printing of Urdu/English Grammar books to Royal Educational Press, Rawalpindi without any lawful authority. It may be added here that Textbooks Board has been established to ascertain syllabus for students and none else than the Textbooks Board has been empowered to publish syllabus books or supporting/allied material for students in the Government Schools of Azad Jammu & Kashmir.
19. Shabeer Hussain Shah, the rival petitioner came up with the claim that Azad Jammu & Kashmir Teachers Foundation entered into an agreement with Royal Educational Press Rawalpindi for printing of Urdu/English Grammar Books for classes 3 to 8. Agreement between the two has been attached with the rival petition as Annexure A, It has been contended by learned counsel for Shabeer Hussain Shah, Managing Director, Royal Educational Press, Rawalpindi that Azad Jammu & Kashmir Teachers Foundation executed agreement in his favour under lawful authority and Royal Press has printed the books in a large quantity by spending more than Rs, 5 millions. Learned counsel has stressed that the petitioner has printed the books under a lawful agreement and the Government or the Teachers Foundation is not competent to withdraw from the agreement unilaterally. It has further been stressed that if the petitioner is not allowed to bring the books in open market, he would suffer from irreparable loss. Learned counsel has further explained that vide agreement dated 12.02.2015 Royal Educational Press is responsible for depositing 25% of the total income into the account of Teachers Foundation. He has further stated that Teachers Foundation has executed this agreement for three academic sessions, which is extendable under the circumstances, so until the completion of term of agreement, the petitioner has a right to do lawful business. Learned counsel for the rival petitioner has also argued that matter between the parties relates to contractual liability, so writ petition filed by Tanveer Mughal and others is not competent.
20. As mentioned earlier, Teachers Foundation Azad Jammu & Kashmir is not authorized by law to publish or print syllabus books or allied/supporting material for students. Title pages of books published on behalf of Teachers Foundation have been attached with the writ petition titled Muhammad Tanveer Mughal and others v. MD Teachers Foundation and others which shows that Urdu/English Grammar books have been printed for different school grades. When the Teachers Foundation is not authorized by law to publish/print such Grammar books, how it can execute an agreement with a publisher for printing of these books. Obviously, agreement between Azad Jammu & Kashmir Teachers Foundation and Royal Educational Press, Rawalpindi dated 12.02.2015 has been executed without lawful authority, so it carries no legal effect. Shabeer Hussain Shah, MD Royal Educational Press Rawalpindi, therefore, cannot claim any benefit under such an unlawful agreement.
21. In addition to the above, it may be observed here that Azad Jammu & Kashmir Teachers Foundation has ordered for printing of large volume of Urdu/English Grammar books without inviting open tenders for the purpose. Learned counsel appearing on behalf of Tanveer Mughal and another has relied on recent judgment of the High Court in a case titled Mir Muhammad Ashraf and others v. Azad Government and others decided on 28.03.2016 by contending that process of bidding is supposed to complete in a transparent manner. He has further relied on 2005 SCM R 678 and PLO 2000 AJ&K 1 in support of his version. Agreement dated 12.02.2015 is held as unlawful and non-transparent for the afore-discussed reasons. It may further be stated that learned counsel for Shabeer Hussain Shah, the petitioner has relied on minutes of meeting of Board of Governors dated 21.09.2015 and has contended that Raja Muhammad Abbas Khan, Secretary Elementary and Secondary Education attended the meeting as Vice-Chairman Board of Governors, He has further explained that item No, 5 described that allotment of books to Teachers Foundation would be given on preferential basis. I have gone through the contents of meeting of Board of Governors and Executive Committee of Azad Jammu & Kashmir Teachers Foundation held on September 21, 2015.
Item No, 5 of the meeting does not allow Teachers Foundation to publish or print books on its own, however, it has been concluded in the meeting that Azad Jammu & Kashmir Textbook Board and Teachers Foundation are both State institutions and both of them should work for strengthening each other. In the meeting, Chairman Board of Governors directed Chairman Textbook Board to allow publishing of books by Teachers Foundation on priority basis. A perusal of whole the proceedings of meetings does not show that Board of Governors of Teachers Foundation ever authorized the Foundation to publish/print Urdu/English Grammar books, rather it also transpires that it is the domain of the Textbook Board to allow Teachers Foundation to publish syllabus or other books for students of Azad Kashmir.
' Upshot of the above discussion is that Writ Petition No, 759/2016 titled Shabeer Hussain Shah v.
Azad Govt. And others is dismissed being devoid of force. Writ petition titled Muhammad Tanveer Mughal and others v. MD Teachers Foundation and others is accepted in the terms that Azad Jammu & Kashmir Teachers Foundation is not competent under law to publish or order for printing of syllabus books or allied/supporting material for students of Government Schools of Azad Jammu & Kashmir Teachers Foundation or the Royal Educational Press, Rawalpindi is, therefore, barred to bring the printed books in market and if these books have already been offered for sale in the market, these may be removed from the market forthwith. Districts Administration and the Police in all Districts of Azad Jammu, & Kashmir shall be bound to carry out the order.