Ghulam Mustafa Mughal, J.--The captioned appeal by leave of the Court arises out of the judgment dated 20.10,2017 passed by the Azad Jammu & Kashmir High Court in writ petition No. 483 of 2015.
2. The precise facts forming the background of the captioned appeal are that the appellant, herein, was appointed as Naib Qasid vide order dated 19.11.2009 on the recommendations of the respective selection committee. He submitted his joining report to the competent authority , which was allowed. It is stated that a day after the appointment/joining report, the order dated 19.1 1.2009 was cancelled and Respondent No. 1. herein, was appointed in place of the appellant, herein, vide order dated 20.11.2009. The order dated 20.11.2009 was challenged by the appellant; herein, before the Azad Jammu & Kashmir Service Tribunal by way of an appeal, which was contested, by the other side and ultimately vide judgment dated 15.7.2014, the order dated 20.11:2009 was cancelled and the appointment order of the appellant, herein, dated 19.11.2009 was restored. The appellant, herein, rejoined his service on 7.8.2014 and is still serving on the said post as per his claim. The order dated 15.7.2014 passed by the learned Service Tribunal was challenged by Respondent No. 1, herein, through a petition for leave to appeal before this Court and the same was refused vide judgment dated 10.12.2014. Respondent No. 1, herein, being unsuccessful in the litigation, filed a writ petition on 10.3.2015 before the Azad Jammu & Kashmir High Court and challenged the appointment of the appellant, herein, made on .19.1 1.2009 stood restored by the judgment of the Service Tribunal as well as this Court. The appellant, herein, contested the case but the learned High Court without hearing the appellan t, has accepted the writ petition through the impugned judgment dated 20.10.2017.
3. Ch. Shoukat Aziz, the learned Advocate appearing for the appellant argued with vehemence that the appellant, herein, was appointed on the post of Naib Qasid on the recommendations of the respective. selection committee alter due process of law vide order dated 19.11.2009. The appellant in compliance of the said order joined his duty but the appointment order dated 19.11.2009 was cancelled on the very next date i.e. 20.11.2009 and instead of the appellant, Respondent No. 1. herein, stood appointed on political consideration and directive. The learned Advocate argued that feeling aggrieved from the order dated 20.11.2009 the appellant, herein, challenged the legality and correctness of the same before the Azad Jammu & Kashmir Service Tribunal on 20.2.2010. After necessary proceedings the learned Service Tribunal vide judgment dated 15.7.2014 accepted the appeal and cancelled the appointment of Respondent No. 1. herein, made on 22.11.2009 and restored the appointment of the appellant, herein, issued aft 19.11.2009. The learned Advocate argued that Respondent No. 1, herein, filed a petition for leave to appeal before this Court on 13.8.2014, which was rejected vide judgment dated 10.12.2014. He argued that after a-period of three months, Respondent No. 1, herein, filed a writ petition before the Azad Jammu & Kashmir High Court on 10.3.2015 in which the appellant, herein, was arrayed as Respondent No. 4. The appellant contested the writ petition by filing written statement but through the impugned judgment dated 20,10.2017 the learned High Court without hearing the appellant has accepted the writ petition while issuing a direction for fresh appointment. The learned Advocate argued that appointment of the appellant, herein, was made after due process of law and was protected by the Service Tribunal as well as by this Court, therefore, interference in the appointment by the learned High Court was unwarranted, erroneous, illegal and capricious in view of the bar ,contained under section 47 of the Azad Jammu & Kashmi r Interim constitution. The learned Advocate argued that the judgment of the learned High Court is without jurisdiction, hence, is liable to be set aside.
4. No one has appeared on behalf of the respondents, hence, ex-parte proceedings were ordered.
5. We have heard the learned Advocate appearing for the appellant in support of the grounds raised in the appeal and have perused the record. A perusal of the record reveals that the appellant, herein, was appointed vide order dated 19.11.2009 on the basis of the recommendations of the respective selection committee. He joined his duty on 19.11.2009 after' noon. The order of the appellant was cancelled on 20.11.2009 without any 'show-cause notice and reason because earlier , the order of the appointment of the appellant, herein, was acted, upon. It further reveals that order dated 20.11.2009 was challenged by the appellant, herein, through service appeal No. 91 before the Azad Jammu & Kashmir Service Tribunal on 12.2.2010. Respondent No. 1, herein, was also arrayed as party as Respondent No. 5 before the Service Tribunal. The learned Service Tribunal after hearing the parties vide judgment dated 15.7.2014 accepted the appeal and restored the order of appoin tment of the appellant, .herein, dated 19.11.2009'. A petition for Ieave to appeal was filed before this Court against the said order on 13.8.2014, which was dismissed on 10.12.2014, hence, the findings of the Service Tribunal stood finalized. On the same facts, a writ was filed before the Azad Jammu & Kashmir } Ugh Court by the Respondent No. 1, herein, in the garb of a writ of quo-warranto , as stated above, and the same has been accepted by the learned High Court. We are of the considered view that the appointment of the appellant, herein, made on 19.11.2009 was fully protected by the judgment of the Service Tribunal arid subsequently by the judgment of this Court, hence, couldn't be challenged before the high. Court. We are also of the view that filing of writ of quo-warranto by the same person before the High Court was motivated by malice, hence the learned High Court should have refused the discretionary powers.
We refer here the case reported as Syed Manzoor Hussin Gillani vs. Sain Mullah, Advocate and 2 others (PLD 1993 Supreme Court (AJ&K) 12), where by, it was decided that writ of quo-warranto 'cannot be issued in routine especially when it is proved that the same has been filed with ulterior motive. At page 22 of the report, it was held as under:- "It may be stated that it is well settled principle of law that the superior Courts insist that in case of writ of quo- warranto which is purely a discretionary matter , the Court should closely scrutinise the averments made in the writ petition before issuing notice and it should not be issued as a matter of routine. We find support in cases reported as Dr. Kamal Hussain v. Muhammad Sirajul Islam PLD 1969 SC 42 and Ch. Muhammad Anwar v. Ch. Muhammad Rashid PLD 1987 SC (AJ8BK)
41. In case titled Kh. Noor -ul-Amin v. Sardar Muhammad Abdul Qayyum Khan Civil PLA No. 90 of 1991, this Court had the occasion to examine the principles which should be kept in mind while issuing a rule in a writ of quo-warranto . It was observed that a rule nisi cannot be issued as a routine. The following observations arc relevant:- If initially , he makes out his prima facie case, the burden of proof would shift to the opposite side but if the material facts are not pleaded by the petitioner on which he basis his claim or the same are not sufficient enough to make a prima facie case in favour of the petitioner , it cannot be said that a rule nisi can be issued as a matter of routine.
The non-petitioner would be called upon to show that he was holding the office under what authority of law would arise only if, in the first instance, the petitioner makes out a prima facie case that he was not so holding the office.
The two cases from Indian jurisdiction cited by Kh. Noor-ul-Amin do not lay down any dif ferent rule:- In such state of affairs, we are constrain ed to accept the appeal and set aside the impugned judgment of the learned High Court dated 20.10.2017. Resultantly , the writ petition filed on 10.3.2015 stands dismissed with costs.