Ghulam Mustafa Mughal, J-- The captioned appeal by leave of the Court arises out of the judgment dated 14.3.2017, passed in writ petition No. 2211 of 2015.
2. The facts forming the background of the captioned appeal are that Syed Ashfaq Hussain Shah, respondent No.1, herein, filed a writ petition before the Azad Jammu & Kashmir High Court on 29.10.2015 seeking a direction to the respondents, therein, to promote him as the Liaison Officer, B-16, in the light of the approval accorded by the Chief Executive on 25.11.2014, as well as in compliance with the relevant rules. It was alleged that he is a permanent employee of the Forest Department and qualified as B.A, L.L.B. and at present performing his duties in the Forest Prosecution Department. It was averred that under the departmental rules, 50% quota for appontiemnt against the post of Liaison Officer, B-16, has been allocated for the law graduate employees of the department. He is in possession of the requisite qualification and also has an experience of legal work for more than 12 years, hence, is eligible for promotion to the post of liaison officer B-16. It was further alleged that all the posts except the one under dispute, have been filled in through direct recruitment, therefore, the impugned post falls in the promotion quota. It was stated that the official respondents despite the directions issued by the Prime Minister appointed the appellant, herein, on ad-hoc basis contrary to law and relevant rules. The respondents, therein, were summoned. They contested the writ petition by filing written statement. It is stated in the written statement filed on behalf of the official respondents that the respondent No.1, herein, has been appointed on ad-hoc basis just as a stop-gap arrangement and the permanent appointment shall be made by following due process of law. The respondent, herein, is not an aggrieved person, he has no locus-standi to file the writ petition. Muhammad Maroof, appellant, herein, stated in the written statement that his appointment has been made in accordance with the existing rules. He also refuted the other grounds taken by the appellant, herein. After hearing the counsel for the parties, the learned High Court has accepted the writ petition through the impugned judgment and directed the respondents, therein, to consider the petitioner for promotion as Liaison officer, B-16, strictly in accordance with law within a reasonable time. Now the appellant, herein, has approached this Court through the instant appeal.
3. Raja Iqbal Rasheed Minhas, the learned Advocate appearing for the appellant, vehemently argued that the arguments in this case were heard by the learned High Court on 1.12.2016 and the case was fixed for judgment on 2.12.2016. He submitted that on 2.12.2016, the judgment was not announced rather the same was reserved and was announced on 14.3.2017, after a period of three months. He argued that the judgment announced after a period of three months, is illegal, erroneous and would be deemed to have been announced without providing the right of hearing to the parties. The learned Advocate further argued that even otherwise on merits the leaned High Court has directed the respondents, therein, to promote the petitioner, therein, respondent, herein, on the direction of the Chief Executive, which has no sanctity in law. He argued that under the relevant rules, the competent authority is Minister-in-Charge, hence, direction given by the Chief Executive even otherwise was not proper. The learned Advocate submitted that direction for promotion cannot be given even otherwise because the same is the prerogative of the authority to select the candidate having regard to the qualification, seniority and fitness, hence, the judgment of the High Court is contrary to law.
4. Conversely, Syed Nazir Hussain Shah Kazmi, the learned Advocate appearing for the respondents, argued that the appellant, herein, is not aggrieved and the arguments advanced by the learned Advocate for the appellant have not been raised in the petition for leave to appeal, therefore, the stand not taken in the pleadings cannot be allowed to be raised. The learned Advocate further argued that as the order of the Chief Executive was admitted by the other side and under the rules of business the same was liable to be implemented in letter and spirit, therefore, the appeal has no merits, hence, may be dismissed.
5. We have heard the learned Advocates representing the parties and gone through the record of the case. A perusal of the record reveals that the arguments in the present case were heard on 1.12.2016 and the case was fixed for judgment on the very next date i.e. 2.12.2016. It appears that on that date, the learned Judge seized with the matter could not announce the judgment and reserved the same. On 14.3.2017, the judgment was dictated and the same was announced by the Registrar on 25.3.2017. The contention of Raja Iqbla Rasheed Minhas, the learned Advocate for the appellant that the judgment was announced after a period of three months, finds support from the record. In the present case, as stated above, the judgment was reserved on 2.12.2016 and the same has been announced on 14.3.2017 after a period of three months. Though, no specific time period is fixed for announcement of the judgment in the Azad Jammu & Kashmir High Court Procedure Rules, 1984, but as the Civil Procedure Code is applicable to the writ proceedings, therefore, it has been opined by the apex Court of Pakistan that the judgment should be announced in a reasonable time. The reasonable time has been prescribed as three months. In the case reported as Messrs MFMY Industries Ltd. and others vs. Federation of Pakistan through Ministry of Commerce and others (2015 SCMR 1550), the identical proposition was examined by the apex Court of Pakistan, wherein at page 1565 in para 7, it was observed as under:- "7. I shall now turn to the hearing of the first and/or second appeals by the High Court(s), and the hearing of the cases before it in its revisional and constitutional jurisdiction. As the first appeals against decrees and mostly the constitutional cases and ICAs are heard by a Division Bench(s) of High Courts, so as to enable the two judges to deliberate, confabulate and compose the judgments(s), or record dissent and/or exchange draft judgments, the reasonable time for the pronouncement of judgments should be 90 days. This time period (90 days) shall be reasonable time for the High Courts. For the reasons that Article 201 of the Constitution of the Islamic Republic of Pakistan, 1973 mandates "Subject to Article 189, any decision of a High Court shall to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all courts subordinate to it". Thus for proper enunciation of law, considerable research, brooding and pondering may be required. 90 days time in view of said Article should, therefore, also be good and adequate for the composition of the judgments by the High Court(s) in the above matters and also in first appeals against order or second appeals, and in the cases before it in its revisional or review jurisdiction, or any of the special jurisdictions of the High Court(s) (note: subject to the principle if the law has fixed a time for conclusion of the proceedings and pronouncement of judgment under any special law, this has to take precedence over the 90 days).
If the judges cannot compose and deliver the judgments within the above (reasonable) time, then they for sufficient reasons, to be recorded (by them) should set out the case for re-hearing. However, because of high status of the judges of the High Courts, it is not expected that the learned Judges shall fix the matters for rehearing in routine just to cover up the lapse in composing the judgment within 90 days, rather I am sure that it shall definitely be for genuine reasons reflected in the order of rehearing as to why the judgment could not be written and pronounced. However, pronouncement of judgment by the High Court after a lapse of time period of 90 days if the matter for any reason is not put for any rehearing per se shall not be invalid, though it may be frowned upon. But again it does not mean that learned High Court has indefinite time to pronounce the judgment after hearing of the matter. In my opinion, the maximum time within which the judgment should come is 120 days. Otherwise the judgment shall stand weakened in quality and efficiency, if not invalid altogether and therefore when challenged before this Court, the Court shall decide whether it should sustain or set aside on the simple and short ground of inordinate delay."
Again at page 1569 in para 11, it was observed as under:- "11. In the light of all that has been discussed and mentioned above, it is clear that unlike the cases before the Trial Court, the cases for which no specific period has been fixed by the statutory law for pronouncing the judgment, it is required of the learned Judges concerned of the District Judiciary that they would pronounce the judgments within the time enunciated by this opinion. And it is expected of the learned judges of the High Courts to give respect to what time has been laid down herein. Otherwise, any judgment rendered may be questioned as not being meaningful, purposive and rather illusionary. Such a verdict shall neither fit in the concept, object and purpose of a judgment nor shall it meet the rule of proper dispensation of justice. But if any matter comes before this Court in which a judgment of the learned High Court is attacked as travelling beyond the period of six months, despite my holding it to be weakened in quality etc, but it shall not be invalid altogether, still it shall be open to this Court to examine if for some reason an exception can be taken to this opinion and if so such judgment may be upheld. However having examined the judgment impugned in this case which has been pronounced after a period of one year and three months. I find it to be against the rule of natural justice and is fundamentally does not meet with the concept of proper judicial dispensation, thus the same cannot be sustained and in such a situation the rule of vitiation of a judicial decision can be aptly resorted to; and is, therefore, set aside and the matter is remanded to the learned High Court for decision afresh. These appeals stand allowed in the terms noted above."
This Court in Sheikh Mahmud Ahmed's case (PLD 1987 SC (AJ&K) 21) has already taken identical view and opined that the Courts have to deliver the judgment soon after hearing the arguments. If there is a considerable interval between hearing the arguments and announcing the judgment, then it would be deemed that judgment was delivered without hearing the parties concerned. The relevant observation has been made at page 23 of the report as under:- "The first question which is to be resolved is as to whether the judgment delivered after such a long time after hearing the arguments can be said to be a valid judgment in the eye of law. It is settled law that a judgment in a civil case or for that matter in an appeal before the Service Tribunal is to be delivered soon after hearing the arguments. If there is a considerable interval between hearing the arguments and announcing the judgment, it cannot be said that the judgment was delivered soon after hearing the parties. It is not conceivable that arguments advanced one year earlier in an appeal could be fresh in the memory of the Tribunal at the time of writing the judgment. Assuming that the learned members of the Tribunal might have taken notes of the arguments advanced by the counsel for the parties, the fact remains that it could not be possible for them to have taken notes in such a detail so as to cover all the points involved in the case. It is common experience that despite the notes taken at the time of the arguments, many details are left unnoted for the reasons that the same would remain in the memory of the Court or the Tribunal. We are of the view that the judgment announced after the expiry of a considerable time, as in the present case, would be deemed to be a judgment delivered without hearing the parties concerned."
Reliance can also be placed on the following precedents:- i) Pathana vs. Mst. Khandal (PLD 1952 BJ 38). ii) Mst. Bassi Begum and others vs. Mst. Hakam Noor and others (PLD 1960 Azad J & K 11).
In the first case it was held that the judgment delivered after 5 months of hearing arguments tantamount to delivering judgment without hearing parties and the case was remanded for fresh judgment after hearing arguments over again.
In the second case it was opined that no valid judgment can be given without hearing the parties. A judgment delivered about four and half months after hearing the arguments of the parties would be tantamount to delivering judgment without hearing the parties and, therefore, such a judgment would not be a legal decision.
In view of above, it can safely be concluded that the judgment delivered by the Court after more than 3 months will be deemed to be a judgment delivered without hearing the parties and in case of constitutional courts the observation recorded by the apex Court of Pakistan in Messrs MFMY Industries Ltd.'s case (supra) liable to be followed. We have gone through the record of this case and are of the opinion that remand will not serve any purpose. The reason is that the appellant, herein, was appointed on ad-hoc basis and he has been relieved from service, therefore, remand of the case would be an exercise in futility. However, we will direct the authority to make the appointment on the post of Liaison Officer in accordance with the rules after determining the quota envisaged in the said rules.
The appeal is accepted in the manner indicated above. No order as to costs.