RAJA SAEED AKRAM KHAN, J.---The titled appeal by leave of the Court has been directed against the judgment passed by the High1Court on 26.5.2016, whereby, the writ petition filed by the appellant, herein, has been dismissed.
2. The facts in brief as stated are that the appellant, herein, filed a writ petition in the High Court, alleging therein, that he is Ex-Secretary General, Bar Association, Muzaffarabad and believe in the supremacy of law, protection of the fundamental rights of State-Subjects, especially, the Health, Education, Environmental protection and liberty of speech. It has been alleged that he filed the writ petition to realize the State functionaries with regard to their obligations and duties. The Chancellor of Azad Jammu and Kashmir University advertised the post of Vice Chancellor in daily newspaper 'Daily Jang' on 29.3.2016 through the President Secretariat. It is averred that the presidential Secretariat under the AJ&K Rules of Business, 1985 has no jurisdiction, to issue such like advertisement. He prayed for setting aside the advertisement dated 29.3.2016 and letter dated 22.3 2016 and the order dated 8.7.2015 through which a Search Committee has been constituted. After necessary proceedings, the learned High Court dismissed the writ petition vide impugned judgment dated 26.5.2016, which is the subject-matter of this appeal.
3. Sardar Karam Dad Khan, Advocate, the learned counsel for the appellant, submitted that the learned High Court while holding that the appellant is not an aggrieved person failed to resolve the factual as well as the legal proposition involved in the matter. He further submitted that the act of the respondents will cause the effects upon the whole society, therefore, he challenged the same being citizen of the State. He contended that the statutory provisions of section 10 of the AJ&K University Act, 1985 are ambiguous and arbitrary, therefore the same cannot be given preference over the Constitutional provisions which are the supreme law of the land. He further contended that under the provision of section 7 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, the Presidential Secretariat has got no authority to issue the advertisement or to process the case for appointment of Vice Chancellor without any advice of the Prime Minister. He added that the learned High Court has travelled beyond its jurisdiction while issuing the recommendation to the Azad Jammu and Kashmir Bar Council for amendment of the rules. The learned counsel submitted that the learned High Court while delivering the impugned judgment has passed the unnecessary remarks regarding the conduct of the appellant, therefore, the learned High Court has travelled beyond the pleadings of the parties. He argued that the education is one of the fundamental rights of the state-subjects coupled with other constitutionally guaranteed fundamental rights. The University of Azad Jammu and Kashmir is a public institute, therefore, the appointment of the Vice chancellor without lawful authority can infringe the interest of the state-subjects and their future generations. He contended that under law it is the sole discretion of the Chancellor to appoint or remove the Vice Chancellor and determine his terms and conditions, whereas, such unguided powers are not recognised in any civilized society. He submitted that such arbitrary powers of Chancellor exercised by him without advice of the Prime Minister is departure from the Constitutional provisions. The Chancellor being the President has to act on the advice of the Prime Minister who is responsible and answerable before the public through elected representatives at the forum of the Assembly. The learned counsel has relied upon the cases reported as Rana Aamer Raza Ashfaq and another v. Dr. Minhaj Ahmad Khan and another [2012 SCM R 61], and Begum Nusrat All Gonda v. Federation of Pakistan and others [PLD 2013 SC 829].
4.On the other hand, Mr. Farooq Hussain Kashmiri, Advocate, the learned counsel for respondents Nos, 1 and 3, argued that the judgment passed by the learned High Court is perfect and legal therefore, no interference is called for by this Court. He further argued that the appellant does not fall within the definition of aggrieved person and he has no locus standi to file the writ petition before the learned High Court, therefore, the appeal is liable to be dismissed on this sole ground. He argued that none of the rights of the appellant have been infringed whereas, only aggrieved person can file the writ petition for the protection of basic fundamental Constitutional rights. He contended that the advertisement dated 20.3.20116 and the appointment notification of the Vice Chancellor dated 28.7.2015 have been issued under section 10 of the Azad Jammu and Kashmir University Act, 1985, therefore, no illegality, has been committed by the learned High Court while passing the impugned judgment.
5.Mr. Muhammad Zubair Raja, Additional Advocate-General, while appearing on behalf of respondent No, 2, supported the arguments of the learned counsel for respondents Nos,1 and 3. He submitted that the powers to appoint the Vice Chancellor are based on the relevant rules and the vires of the same cannot be challenged until and unless the same are inconsistent with the Constitution, whereas, no eventuality is available in this case. He has relied upon the cases reported as Raja lqbal Rashid Minhas v. AJ&K Council and 3 others [PLD 2002 SC (AJ&K) 1], Raja Tahir Majeed Khan and others v. Azad Government and 6 others [2014 SCR 272].
6.We have heard the arguments of the learned counsel for the parties and the learned Additional Advocate-General at some length and gone through the impugned judgment along with the record made available. The controversy involved in the matter is that the appellant, herein, challenged the letter dated 22.3 2016 issued by the Presidential Secretariat, advertisement dated 29.3.2016 and the order dated 8.7.2015 through which a Search Committee has been constituted for the appointment of Vice Chancellor of the University of Azad Jammu and Kashmir. The claim of the appellant was that section 10 of the Azad Jammu and Kashmir University Act, 1985 is ambiguous which confers the arbitrary powers to the President/Chancellor to make the appointment of the Vice Chancellor. 7.The learned High Court has given the main thrust on the question of maintainability of the writ petition and held that the same has been filed incompetently by a person who does not come within the definition of an aggrieved person. Thus, we also intend to attend this aspect of the case at first. During the course of argument, the learned counsel for the appellant was confronted that how he is an aggrieved person within the ambit of section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, he submitted that the appellant being an advocate believes in the supremacy of law and Constitution. The act of the Presidential Secretariat while issuing letter dated 22.3.2016 and advertisement dated 29.3.2016 and the order dated 8.7.2015, through which a Search Committee for appointment of Vice Chancellor of the University of Azad Jammu and Kashmir has been made, is in violation of the relevant law and rules. He submitted that the appellant agitated his grievance as pro bono publico before the learned High Court by challenging the vires of law.
8. To appreciate the argument addressed by the learned counsel for the appellant, we have given our serious thought to the relevant provisions of section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, which postulates that one can move the Court pro bono publico to challenge the vires of law on the ground that the same offends the provisions of the Constitution.
The person who seeks a command from the High Court for enforcement of fundamental right must first show as to how he is an aggrieved person. A Writ can be issued only on the petition of an aggrieved person and not by a pro bono publico litigant. In other words a person whose interests have been adversely affected by the impugned legislation or order under challenge, he can competently file a writ petition and then file an appeal before the Supreme Court against the judgment of the High Court as required by law.
9. In the case in hand, we have failed to gather anything to ascertain that how the appellant is aggrieved by the act of respondent No, 2, herein. Neither the appellant is a candidate for the post of Vice Chancellor nor he is student of the University, therefore, no legal right of the appellant appears to be infringed. The argument of the learned counsel for the appellant that as pro bono publico he challenged the vires of the law before the learned High Court by filing writ petition, it may be observed that every person by his own sweet will,' cannot file the writ petition as pro bono publico until and unless he fulfils the conditions to invoke the Constitutional jurisdiction of the High Court. The appellant while invoking such jurisdiction, has to show that he was litigating firstly, in public interest and secondly, for public good or for welfare of general public. In the case in hand, the appellant failed to show any such interest, therefore, he is not an aggrieved person. Thus, he could not invoke the Constitutional jurisdiction of the High Court as pro bono publico as laid down in a case reported as Javed Ibrahim Paracha v. Federation of Pakistan and others [PLD 2004 SC 482], wherein it has been held as under:-- "10. No doubt with the development of new concept of public interest litigation in the recent years, a person can invoke the Constitutional jurisdiction of the Superior Courts as pro bono publico but while exercising this jurisdiction, he has to show that he is litigating, firstly in the public interest and, secondly, for the public good or for the welfare of the general public.
In a case reported as Col. (Retd.) Muhammad Akram v Federation of Pakistan through Secretary, Ministry of Defence, and others 1998 SCM R 2073], it has been held as under:-- "3.We are unable to subscribe to the above contention of the petitioner as the convict or his close relation could have filed the above writ petition but the petitioner has not been able to show any personal interest in the convict of the nature warranting filing of the same. The case in hand involves trial and conviction of an individual person and hence the principle of pro bono publico cannot be invoked in aid."
Similarly, in another case reported as Ghiasul Haq and others v. Azad Government of the State of Jammu and Kashmir and others [PLD 1980 SC AJ&K 5], it has been held as under: -- "27. And if this is so the petition, as framed, was not maintainable under section 44(c) because the High Court cannot under the said constitutional provision grant a declaration simpliciter, nor anyone can move the Court pro bono publico to challenge the vires of a law on the ground that the same offends against any provision of the Constitution. The person who seeks a command from the High Court for enforcement of fundamental right must first show with reference to admitted or proved facts, as to how he is an aggrieved person; from what particular act or action he feels aggrieved, and to which authority he wishes the writ of the High Court to be directed. The case law referred to by the counsel for the appellant is not helpful to the case because it has distinguishable features and has nothing common with the case in hand.
10. In the light of what has been discussed above, we are of the unanimous view that the learned High Court has rightly held that the appellant does not fall within the definition of aggrieved person and has no locus standi to file the writ petition as pro bono publico. The findings recorded by the learned High Court are well reasoned, therefore, we are inclined to endorse the same. However, the remarks given by the learned High Court regarding the conduct of the appellant while deciding the writ petition appears to be unnecessary, therefore, the same are hereby quashed.
This appeal stands disposed of in the terms indicated above.