GHULAM MUST AFA MUGHAL, J. --- The titled appeal by leave of the Court has been filed against the judgment dated 16.04.2018, passed by the Azad Jammu & Kashmir High Court in writ petition No, 363 of 2018.
2. The precise facts forming the background of the captioned appeal are that respondent No, 1, herein, advertised one post of Personal Assistant in daily Nawa-e-W aqt published on 24.09.2015, to be filled in through National Testing Service (NTS). Among others the petitioner and the private-respondent, herein, being eligible applied for appointment against the advertised post. After test and interview the petitioner , herein, obtained 48.25 marks, while the private-respondent herein, obtained 50.125 marks. As a result, whereof, the private respondent, herein, was appointed vide order dated 30.05.2016. The petitioner , herein, challenged the appointment order of the private- respondent, herein, through writ petition before the Azad Jammu & Kashmir High Court on 17.02.2018, It was claimed that the private-respondent, herein is possessing B.A. qualification, whereas, the concerned selection committee has illegally awarded him 2 marks for M.A. and issued his appointment order which is without lawful authority , hence, may be set aside. After necessary proceedings, the learned High Court through the impugned judgment dated 16.04.2018, has dismissed the writ petition in limine on the ground of laches.
3. Raja Inamullah Khan, the learned Advocate appearing for the appellant inter alia argued that the petitioner , herein, filed a writ petition before the Azad Jammu & Kashmir High Court, whereby , the appointment order of the private-respondent, herein, was challenge d for having been passed without lawful authority but the same has been dismissed by the learned High Court on the ground of laches. The learned Advocate further argued that the principle of laches was not attracted in the present case in view of the explana tion furnished by the petitioner , herein, listed in ground 'd' of the writ petition. The learned Advocate further argued that the dismissal of the writ petition without admission and seeking comments from the other side, was not justified and arbitrary on the part of the learned High Court. He submitted that there was no counter-af fidavit to negate the assertion pleaded in the writ petition which were duly supported by the affidavit of the petitioner , therefore, the proper course for the learned High Court was to admit the writ petition for regular hearing and thereafter decide the case on merit.
4. Sh. Masood lqbal, the learned Advocate appearing for the other side argued that the writ petition was hopelessly time-barred and the learned High Court has not committed any illegality while dismissing the writ petition as such.
The learned Advocate further argued that the explanation furnished by the petitioner , herein, was not plausible, hence, discretion exercised by the learned High Court cannot be interfered with. In support of his submissions, the learned Advocate placed reliance on the case reported as [2016 SCR 960] and [2015 SCR 15].
5. We have heard the learned Advocates for the parties and gone through the record of the case. A perusal of the record reveals that a post of Personal Assistant was advertised by the Principal Medical College Mirpur in daily 'Nawa-e-W aqt' dated 24.09.2015. Among others, the petitioner , herein, also applied for appointment. It is stated that the test and interview was concluded through NTS. The petitioner obtained 48.25 marks, whereas, the private- respondent, herein, obtained 50.121 marks. The competent authority issued appointment order of the private- respondent, herein, on 30.05.2016. The petitioner , herein, challenged the same through writ petition before the Azad Jammu & Kashmir High Court. It was stated that the private-respondent, herein, is B.A. and the Selection Committee has illegally awarded him 2 marks of MA, whereas, fact of the matter is that he is not M.A. and after deducting these 2 marks, the petitioner would be on merit. It was further stated that his fact has not been brought into the notice of the petitioner as no list was published. After gaining the knowledge, as is claimed in the writ petition, the petitioner has challenged the appointment order of the private-respon dent, herein, without any delay .
The learned High Court dismissed the writ petition in limine on the ground of 'aches despite of the explanation furnished by the petitioner , herein in ground 'D" of the writ petition which is as under:--- "That selection, committee was under legal obligation to display the merit list after completion of selection process but same has not been displayed with mala fide reasoning therefore by observing the situation after selection process and issuance of impugned order petitioner requested the Principal for the time being for issuance of merit list but he satisfied the petitioner being saying that private respondents qualification is M.A. therefore due to higher qualification he has secured the 1st merit position but did not supply the merit list and impugned order till his duration of service as Principal and kept the whole record in his personal custody , furthermore, petitioner was not having knowledge about the fact that respondent No, 4 is lacking the M.A. qualific ation who now after changing of previous Principal and joining of new Principal has come to now about the real fact therefore, writ is being filed at this stage."
The respondents have not controverted the assertion made by the petitioner by filing comments which is supported by an affidavit. Even no counter-af fidavit was filed by the respondents. In such situation, the writ petition could not be dismissed in limine . The proper course for the learned High Court was to admit the writ petition for regular hearing and then decide the same on merit. It is correct that the contention, as to whether , the explanation offered by the petitioner for condonation of delay was plausible or not, can only be judged in light of affidavit or pleadings of the other side. In this regard, reference can be made to the case reported as Ch. Muhammad Ajaib v. Azad Govt. & others [1996 SCR 357].
In view of the above, this appeal is accepted. The writ petition stands admitted for regular hearing. The High Court shall proceed further in accordance with law .