M. TABASSUM AF TAB ALVI, CJ.----The captioned writ petition has been addressed under section 44 of the Azad Jammu and Kashmir Interim Constitution, 1974, whereby , following prayer is made by petitioner:- "In view of the above, it is, very humbly prayed that this Hon'ble Court may very graciously be pleased:-
(i) To declare the impugned illegal recommendation dated 30.03.1989, (Annexure-E) and basic induction order of private respondent No.7, dated 04.05.1989, (Annexure-F) as null and void in the light of grounds (A) and (B) of instant writ petition;
(ii) The impugned notification dated 12.06.1993, (Annexure-H) may kindly be declared illegal in the light of ground
(B) of instant writ petition;
(iii) In the light of reported case 2017 SCR 87 all subsequent promotion notifications of private respondent upto the post of Director General B-20, mentioned in ground (c) may kindly be declared null and void.
(iv) Further may kindly be directed respondent No.7, to refund salary from date of induction up till now which he drew from Government Exchequer by committing fraud and matter may kindly be referred to Ehtesab Bureau for investigation."
2. Precise facts culminating into filing of the instant writ petition are that post of Information Officer was upgraded from BS-16 to BS-17 w.e.f. January , 1989, vide amended notification dated 20.07.1989. It is averred that the Public Service Commission published various posts along with 02 posts of Information Officers (01 against open merit quota and others against quota of District Mirpur) vide advertisement No.1/1988 dated 02.04.1988. Against the aforesaid posts, petitioner and one Muhammad Rasheed Chaudhary , were recom mended by the Public Service Commission on 06.12.1988, hence, the competent authority inducted petitioner as Information Officer B-17, through Government notification dated 04.02.1989. It is alleged that no post of Information Officer was available in the Information Department or in the Budget Book then how the Public Service Commission recommended private respondent No.7, as Information Officer B-16, on 30.03.1989, who was induc ted as such vide order dated 04.05.1989, whereas, the said post was upgraded from BS-16 to BS-17 in January , 1989. It is further alleged that private respondent No.1, was not possessing requisite qualification and experience, however , he obtained relaxation for protection of basic appoint ment order through notification dated 12.06.1993, hence, his promotion notifications up to the post of Director General Public Relations B-20, dated 04.05.2007, 16.04.2014, 06.01.2015 and 21.1 1.2016, respectively are illegal and against law , hence, the instant constitution petition.
3. The writ petition has been resisted by private respondent No.7, through para-wise comments, wherein, it is pleaded that petitioner has no locus standi under law to challenge appointment order of private respondent. It is further pleaded that appointments of answ ering respondent No.7-Azhar Iqbal and one Abdul Latif, were challenged by one Farooq Iqbal Dar, through writ petition before this Court which was accepted vide judgment dated 13.09.1994, however , in appeal the aforesaid appointments were declared valid by the Apex Court vide judgment dated 23.05.1995, hence, matter had been finalized. It is maintained that one Miss Nimra, Advocate, who is daughter of petitioner , herein, also challenged the basic appointment of privat e respondent No.7, along with promotion notifications up to the post of Director General Public Relations B-20, before this Court in Writ Petition No.1698/2017, titled "Miss Nimra, Advocate v. Azad Government and others ", which was dismissed in limine vide judgment dated 22.11.2018. It is submitted that appeal filed against the aforesaid judgment was also dismissed by the Apex Court vide judgment dated 14.03.2019, therefore, past and closed transaction cannot be reopened, hence, craved for dismissal of writ petition in limine.
4. Mr. M. Maqsood Ahmed Sulehria, Advocate, appearing on behalf of petitione r strenuously argued that basic appointment order of private respondent No.7, dated 04.05.1989, along with subsequent promotion notifications up to the post of Director General Public Relations B-20, are illegal and against law, hence, the same are liable to set- aside. He maintained that at the time of induction private respondent No.7, was not possessing requisite qualification and experience for the post of Information Officer, therefore, recommendations dated 30.03.1989, made by the Public Service Commission were illegal, therefore, the same are liable to be quashed. The learned counsel added that no any findings regarding recommendations dated 30.03.1989, were made by the Apex Court in Civil Appeal No.68/1994, titled "Azhar lqbal and another v. Farooq Iqbal Dar and others, " decided on 23.05.1995, hence, submitted for admission of writ petition. The learned counsel in support of his contentions placed reliance on the following case law:- i). Mushtaq Ahmed v . Engineer Muhammad Khalid and 04 others (1998 PLC (C.S.) 140). ii). Mujahid Hussain Naqvi, Advocate and others v. Justice (R) Basharat Ahm ed Sheikh, Mohtasib and others (PLJ 2002 (AJ&K) 49)
5. Messrs Raja Jalil Umer and Raja Muhammad Arif Rathore, Advocates, appearing on behalf of respondents, strenuously argued that appointments of private respondent No.7-Azhar Iqbal and one Abdul Latif, were challenged by one Farooq Iqbal Dar, through writ petition before this Court which was accepted vide judgment dated 13.09.1994, against which, private respondent-Azhar Iqbal and Abdul Latif, preferred an appeal before the Apex Court, which was allowed and their appointments were declared valid by the Apex Court vide judgment dated 23.05.1995, hence, matter had been finalized. The learned counsel pressed into service that one Miss Nimra, Advocate, who is daughter of petitioner , herein, also challenged the basic appointment of private respondent No.7, along with promotions orders up to post of Director General Public Relations BPS-20, in which petitioner , herein, was inserted as pro-forma respondent No.10, before this Court in Writ Petition No.1698/2017, titled "Miss Nimra, Advocate v. Azad Government and others", which was dismissed in limine vide judgment dated 22.11.2018. The learned counsel contended that appeal filed against the aforesaid judgment was also dismissed by the Apex Court vide judgment dated 14.03.2019, therefore, past and closed transaction cannot be reopened, hence, submitted for dismissal of writ petition in limine with cost.
6. I have perused the contents of writ petition and examined the record made available with utmost care.
7. A contemplate perusal of record reveals that private respondent No.7, was appointed as Information Officer B- 16, on the basis of merit, as per recommendations of the Public Service Commission vide order dated 04.05.1989.
It reflects from record that one Farooq Iqbal Dar, challenged appointments of private respondent No.7-Azhar Iqbal and Abdul Latif, through writ petition before this Court which was accepted vide judgment dated 13.09.1994.
Against the aforesaid judgment, private respondent No.7-Azhar Iqbal and Abdul Latif, preferred an appeal before the Apex Court, which was accepted vide judgment dated 23.05.1995. The relevant extract of judgment is reproduced as follows:- "We have already seen that appointme nt of Abdul Latif and Azhar Iqbal, was ordered on 3rd of May 1989.
Therefore, the appointments have to be decided at the touch stones of 1984 Rules. The appointment of Abdul Latif and Azhar Iqbal, was in consonance with the Rules as both of them were graduates and they were given grade B- 16 and not B-17. It may be pointed out that relaxation in the practical experience was ordered by the Government in respect of these two but that was not challenged in the writ petition. Even in the judgment no adverse conclusion has been recorded in respect of this relaxation.
However , the learned Judge declared that the relaxations ordered in favour of Abdul Latif and Azhar Iqbal, were invalid. What were those relaxations? It so happened that record of the impugned appointments was summoned from Information Department by the High Court and the learned Judge came across as order passed on 12th of June 1993 and he partly based his conclusion on it. This order was neither produced by the parties nor forms part of the High Court file. However , a copy has now been attached with the file of this Court."
It was further held in paragraph No.14 of the judgment as follows:- "14. The learned Judge after a detailed analysis held that this relaxation was invalid. This order was passed during the pendency of the writ petition. It was never challenged before the High Court. The writ petition was decided on 13th of September 1994 and there was occasion to move an application for amendment if so advised but no such application was moved. In these circumst ances there was no jurisdiction for the High Court to adjudicate upon the validity or otherwise of this notification. It goes without saying that this notification or any result arising therefore can still be challenged by a separate writ petition. However , we observe that this order seems to have been issued to give higher grade to Abdul Latif and Azhar Iqbal. Even if this order may be found invalid, it did not adversely affect the validity of the appointment orders of these two officers ordered on 3rd of May 1989, which were valid in light of the legal provision in force at the relevant time, namely , the rules of 1984."
In last paragraph of the said judgment, it was concluded as under:- "In the light of the conclusions recorded above the order of the High Court in respect of Abdul Latif and Azhar Iqbal, is vacated and writ petition in connection therewith is recalled."
8. As per judgment supra, it is crystal clear that appointment of private respondent No.7, was declared valid by the Apex Court in Civil Appeal No.68/1994, titled "Azhar Iqbal and another v. Farooq Iqbal Dar and others, " decided on 23.05.1995, hence, matter pertaining to his initial recruitment had attained finality, which cannot be reopened under law .
9. It further reflects from record that Miss Nimra, Advocate, who is daughter of petitioner , herein, challenged the basic appointment order of private respondent No.7, along with promotion notifications up to the post of Director General Public Relations BPS-20, in which petitioner was inserted as pro-forma respondent No.10, before this Court in Writ .Petition No.1698/2017, titled "Miss Nimra Advocate v. Azad Government and others " on 22.11.2018. The aforesaid petition was dismissed in limine vide judgment dated 22.11.2018. Against the aforesaid judgment, an appeal was filed before the Apex Court, which was also dismissed vide judgment dated 14.03.2019.
The relevant extract of judgment is reproduced in paragraph No.8, as under:- "8. Thus, it is clear that the appointment of respondent No.6 has been declared valid by this Court in the judgment drafted on 23.05.1995, announced on 29.05.1995. Once the appointment has been declared valid by this Apex Court and has attained finality , the same cannot be challenged in writ of quo-warranto, hence, on this sole ground, the learned High Court has rightly dismissed the writ petition in limine."
10. However , petitioner , herein, again filed the instant writ petition on behest of writ of quo-warranto, which is frivolous. For filing writ of quo-warranto, a person whose appointment is challenged must be holding office when petition is brought before the Court. Admittedly , private respondent No.7, was not holding post of Information Officer B-16, at the time when the present writ was brought to the Court rather he was holding post of Director General Public Relations BPS-20. Even all prom otions of the said respondent from BS-17 to BS-19, were made as per recommendations of Selection Board concerned. The petitioner and private respondent are admittedly Officers of the same Department, therefore, challenging induction order of private respondent after about three decades ex- facie seems to be mala fide, specially so, when writ petition of petitio ner's daughter was earlier dismissed by this Court against which her appeal was also buried by the Apex Court as stated in paragraph No.9, supra, therefore, writ petition is frivolous.
11. The crux of above is that admission of writ petition will be a futile exercise to create false hopes, hence, the same is dismissed in limine. The petitioner shall also pay a sum of Rs.20,000/- as special cost to private respondent within 02 months period for filing frivolous writ petition. Consequently , amendment application filed by petitioner dated 29.07.2019, is rejected.