Ghulam Mustafa Mughal, J.--The titled appeal, by leave, has keen directed against the judgment delivered by the High Court on 16.2.2019, whereby the writ petition filed by the appellant, herein, has been dismissed in limine.
2. The necessary facts forming background of instant appeal are that the appellant, herein, filed a writ petition before the High Court, alleging therein that he was serving as the Public Relations Officer in the University of Azad Jammu and Kashmir and stood retired, vide notification date 03.05.2018. It was further averred that the University of Azad Jammu and Kashmir was established in the year 1980. Later on, the camp uses of the University were also set up at Mirpur and Kotli. The Mirpur University of Science and. Technology was established through an Ordinance followed by Act No. XXXVI of 2014. It was further stated that the campus of Azad Jammu and Kashmir University at Kotli was also upgraded and a separate University in the name of University of Management Sciences and.
Information Technology was established through Act No. IX of 2014, which was, later on, renamed as the University of Kotli, Azad Jammu and Kashmir , through Act No. XII of 2017. Likewise, Rawalakot Campus of the Azad Jammu and Kashmir University was also upgrade d and the University of Poonch Rawalakot was set up, vide Act No. VIII of 2014. It was alleged that while establishing the MUST University Mirpur , University of Kotli and University of Poonch Rawalakot, through the Ordinance, which was later on replaced by the Act of 2014 and Act of 2017, all the properties, rights and interests of whatever kind, used, enjoyed, possessed, owned or vested in or held in trust by and for the concerned Campus of 'the University of Azad Jammu and Kashmir , all liabilities legally subsistent against the campus stood transferred/shifted. It was maintained that instead of assessing the value of the assets, rights and interests of the University of Azad Jammu and Kashmir through duly constituted committee, all the three Universities demanded the amounts from the University of Azad Jammu and Kashmir , which were transferred through various transactions, without proper appreciation of the relevant legislation on the subject. It was maintained that for the first time. it was pointed out by the Deputy Director Finance (Pension), by referring the extract from the relevant provisions of the MUST Act, for seeking guidance on the subject and the matter remained under discussion between the authorities of the University of Azad Jammu and Kashmir . It was further pleaded that when it was noticed by the staff of the University about the transfer of the amounts from the University of Azad Jammu and Kashmir for disbursement of pension upon the employees retired from the Campus against the substantial law on the subject, the matter was brought into the notice of Chancello r of the Universities/President of the State of Azad Jammu and Kashmir , who constituted a Committee, vide Notification dated 23.2.2018. The committee submitted its report on 15.08.2 018. It was averred that in the meeting held on 16.7.2018, it was decided that the University of Azad Jammu and Kashmir would immediately pay pension to the former employees, who retired from its former campuses or will be retired in future. The appellant, herein, time and again informed the Vice Chancellor of the University as per sub-section (1) of Section 11 of Act No. XXXIV of 1985 to look into the matter and made efforts for saving the assets of the University but the needful was not done. A direction was accordingly sought for restraining the respondents from transferring the amounts from the University of Azad Jammu and Kashmir to the other universities and declaring the constitution of the committee along with its findings and decision as ab initio void. The writ petition has been dismissed by the learned High Court, through the impugned judgment, in limine , hence, this appeal by leave.
3. Mr. Farooq Hussain Kashmiri, advocate, counsel for the appellant, submitted with vehemence that the view taken by the learned High Court while delivering the impugned judgment is capricious, perverse and against the settled law, hence the impugned judgmen t is not sustainable and is liable to be reversed, while accepting the writ petition filed by the appellant, herein. The learned counsel further submitted that the High Court has wrongly placed reliance on the case-law referred to and relied upon in the impugned judgment and the fact of the matter is that the facts of those cases were totally distinguishable and the law laid down, therein, was also not applicable keeping in view the facts and prayer made in the instant case. The learned counsel argued that the learned High Court has erroneously ignored the dictum of this Court laid down in the case reported as Rehmatullah Khan and others vs. Azad Government and others [2014 SCR 1385), wherein the question of locus standi for filing the writ petition in public interest matters has been explaine d and given vast manning for the purpose of invoking the writ jurisdiction of the High Court. The learned counsel next argued that the appellant, herein, was a retired employee of the.
University and was directly interested with performance of its functions in accordance with the relevant statute and any violation could be brought into the notice of the constitutional Courts in writ jurisdiction, The learned counsel further argued that the University of Azad Jammu and Kashmir was established in the year 1985, through Act XXIV of 1985 and two campuses were established by the said University at Mirpur and Kotli, subsequently . At Mirpur , the department of Engineering was established in the name of Syed All Ahmed Shah, the former President of Azad Jammu and Kashmir , as Syed Ali Ahmed Shah College of Engineering and Technology , along with the department of Arts and Islamiyat. Similarly , at Kotli, the department of Business Administration was established. Both the campuses were subsequently reset and new Universities, i.e. Mirpur University of Science and Technology at Mirpur and the University of. Businesses Administration at Kotli were established, through Act No. XXXVI and IX of 2014, respectively . The learned counsel further submitted that as the University of Azad Jammu and Kashmir has spent huge amount for establishing MUST University at Mirpur as well as the University of Business Administration at Kotli, therefore, under sub-section (7) of Section 3, it was enjoined upon the concerned authorities to transfer the investment made by the University of Azad Jammu and Kashmir for establishment of these colleges/departments.
The learned counsel argued that it was enjoined upon the authorities to determine the assessed liabilities and investment of the University of Azad Jammu and Kashmir made for establishing these institutions but arbitrarily the same has not been done as a result whereof the University has suffered a huge loss. The University has also affected in its smooth functions due to non-availability of funds and return of assets utilized by the University for establishment of the new institutions. In support of the submissions, the learned counsel referred to and relied upon the case reported as AJ&K Government and 4 others vs. Mohi-ud-Dln Islamic University and 2 others [2014 SCR 382].
4. Raja Ayaz Ahmed Khan, the learned Assistant Advocate-General, while appearin g on behalf of Respondents No. 1 to 4 submitted that the appeal has not merits and the same is liable to be dismissed because while handing down the impugned judgment the learned High Court has not committed any illegality . The learned Assistant Advocate- General argued that the appellant, herein, is a retired employee of the University of Azad Jammu and Kashmir , who admittedly has received all the pensionary benefits and is also receiving his pension regularly in accordance with law. He submitted that his no right has been affected in any manner , therefore, he cannot file the writ petition. He argued that for filing the writ of mandamu s and certiorari, it is sine qua non that the applicant must be an aggrieved person. As none of the rights of the appellant has been infringed due to the establishment of these institutions and the University of Azad Jammu and Kashmir , being a legal person, can itself institute and defend its rights, thus, filing of the petition on behalf of the University without following the due course of law, is not permissible. The learned Assistant Advocate-General referred to and relied upon the case reported as AJ&K Government and 4 others vs. Mohi-ud-Din Islamic University and 2 others [2014 SCR 382].
5. Raja Amjad Ali Khan, advocate, while arguing the case on behalf of Respondents No. 5. 10 and 14, submitted that the question of the appellant being aggrieved person to file the writ petition is to be resolved by this Court, however , under the relevant laws, provid ing for the common provision, it was enjoined upon all the concerned to determine and formulate a final list of assets and liabilities of all the three campuses and get the same transferred to the newly established Universities but the same has not been done.
6. Barrister Humayun Nawaz Khan, advocate, counsel for Respondents No. 7, 8, 12 and 13, and Sardar Muhammad Habib Zia, Advocate, Legal Advisor for Respondents No. 6 and 11 adopted the arguments of the learned counsel for the respondents and prayed for dismissal of the appeal.
7. We have heard the learned counsel for the parties and gone through the record of the case, with utmost care.
8. The contention of Mr. Farooq Hussain Kashmiri, advocate, counsel for the appellant, that the writ petition has wrongly been dismissed by the learned High Court while observing that the petitioner , appellant herein, is not aggrieved, is devoid of any force. The learned counsel in this regard place reliance on the case reported as Rehmatullah Khan and others vs. Azad Government and others [2014 SCR 1385], which has been distinguished by the learned High Court while handing down the impugned judgment. At page 1420 of the report, while dealing with the question of aggrieved person, this Court in para 22 of the judgment, has held that in view of the factual and legal proposition raised in the case, the petitioner cannot be debarred from invoking the jurisdiction of the Court. In the cited case, the question raised basically relates to the interpretation of constitutional provisions regarding the fundamental rights guaranteed to the State-subjects under the constitution and the relief was also sought against the respondents for enforcement of law, therefore, the Court has rejected the contention of the respondents that the appellant, therein, were not aggrieved person. This Court has further relied upon the case reported as Chaudhary Ali Muhammad Chacha vs. Azad Government and others [2006 SCR 232] and Ajaib Hussain and another vs. Muhammad Fazil and 5 others [1980 CLC 198]. In the instant case, admittedly the appellant has retired from the service of the University of Azad Jammu and Kashmir and neither his pensionary benefits have been refused to him nor he has been denied the payment of regular pension, rather he is regularly receiving the same, therefore, we are of the considered view that the learned High Court has not committed any illegality while dismissing the writ petition.
9. We may also observe here that the question more appropriately can be raised by the University itself or any other employee, having suffered due to non-transfer of the liabilities. Moreover , until the relevant provision of law referred to by Raja Amjad Ali Khan, advocate, is not challenged, no legal right can be claimed by the appellant, herein. The question of locus standi has been considered by the full bench of the Azad Jammu and Kashmir High Court in the case reported as Noor -ul-Amin, Bar-At-Law vs. The Government of the State of Azad Jammu and Kashmir per its Chief Secretary and 2 others [PLD 1987 AJ&K 68], wherein, the petiti oner was a member of the legal fraternity and challenged the amend ment affected in the Constitution, where by the restriction was placed on the members of the Legislative Assembly from giving the vote of no-confidence against the Leader of the House.
The learned full bench of the Azad Jammu and Kashmir High Court, after considering the case-law on the subject, observed in paras 5, 6 and 7 of the report, as under: "5. The prerequisites to invoking jurisdiction of the High Court under Section 44 of the Constitution are:
(i) that no other adequate remedy provided by law is available to redress the grievance; and
(ii) that the application to seek' relief unde r the provisions of clauses (a) (i) & (ii) and (c) of sub-section (2), be made by an aggrieved party .
The qualification listed under clauses (a)(i) and (ii), of course, is not required when the authority of the Court is invoked under clause (b), sub-clause (i) and (ii). Again, in order to seek redres s of a grievance under (c) the qualification for moving the High Court by an aggrieved person, is equally applicable.
6. In present case, the alleged grievance is to be redressed in the light of the provisions contained under sub- section (2)(a)(ii) of Section 44. Thus, it is imperative that before laying hands on merits of the proposition under consideration, to ensure and satisfy that the petitioner is an aggrieved party as contemplated under the Constitution. The petitioner is a citizen of Azad Jammu and Kashmir and an Advocate. He claims his designation as Chairman of the Foreign Relations Board of Jammu and Kashmir Liberation League. It is alleged that the aforesaid facts qualify him as an aggrieved person as contemplated under the Constitution, as such, he is competent to challenge the vires and propriety of the impugned amendment of the Constitu tion. He has demonstrated his grievance by describing himself as a disgruntled subject. disillusioned elector and an extremely disenchanted office-bearer of a political party .
7. Ordinarily , an aggrieved person is he who suffers a grievance by loss of any interest or right in consequence of an act or omission 'caused by an order , decision or action of a tribunal or authority or person. The term "aggrieved person" received attention of the superior Courts of the sub-continent in various cases from time to time. The consensus is that a person is deemed as "aggrieved person" when the satisfies that he suffered loss of the curtailment of a privilege or right in conseq uence of non-performance of a duty. In this context, it is emphasised that the claimant must show any evasion or injury to his personal interest by an act or omission in order to bring his case within the purview of an aggrieved person.. In Muhammad Younus's case (1), Mr. Justice Sardar Muhammad Iqbal, the learned Judge who spoke for the Court, described the term "aggrieved person" in the following manner: `In order that a person is an 'aggrieved person' within the meaning of Article 98 he may not have right in strict juristic sense but he must show that he had a 'personal interest in the performarce of the legal duty' and that tie non-performance of the duty is to result in the loss of some 'personal' benefit or advantage or the curtailment of a privilege. Unless he shows that he will lose 'some benefit or advantage which he would have gained if the order was in accordance with law', he cannot be an aggrieved person.
The proposition was considered once again in- Muhammad Boota's case (2) by the same learned Judge in the following manner:- `An aggrieved person is one who discloses that he had a personal interest in the performance of the legal duty which if not performed or performed in 'a manner not permitted by law, would result in the loss of some personal benefit or advantage or the curtailment of a privilege or liberty or franchise. All orders of executive officers are subject to challenge by those affected by the orders, and a person would be 'affected' even if he loses some benefit or advantage which he would have gained if the order was in accordance with law ."
Similarly , in the case reported as Raja lqbal Rasheed Minhas vs. AJ&K Council and 3 others [2001 SCR 530], the appellant, being an advocate, who was not party in the proceedings before the High Court, challenged the legality and correctness of the judgment of the High Court, wherein the appointment of late Mr. Justice Muhammad Siddique Farooqi (as his lordship then was) was declared unconstitutional. This Court, after considering the relevant constitutional provisions and Article 44 of the Azad Jammu and Kashmir Interim Constitution, 1974, held as under: "14. It may also be pointed out that there is a wide difference between a writ of certiorari and a writ of habeas corpus or a writ of quo warranto . Except the writ of habeas corpus and the writ of quo warranto which can be invoked by any person, the other writs can be prayed for only by an aggrieved person. It may be stated generally that an aggrieved party is one in a writ of prohibition whose rights are threatened, in writ of mandamus whose rights are being denied and in writ of certiorari whose rights have been affected by a decision. The word "right" is not used here in strict juristic sense. It is sufficient if the person alleging to be an aggrieved has a personal interest in the performance of a legal duty which if not performed would result in the loss of some personal advantage. A party who stands to lose or gain an advantage by observance or non-observance of law is an aggrieved party . A person, aggrieved must be a person who has suffered a legal grievance, a person against whom a decision has been pronounced which has wrongly deprived him of something, or wrongfully refused him something or wrongfully affected his title to something. The petitioner being not falling in any of the categories, mentioned above, had no competence to lodge either the writ petitioner or an appeal in this Court against the impugned judgment of the High Court."
As has been observed earlier that the appellant has no legal right to invoke the extraordinary jurisdiction of the High Court and the claim put forth by him can only be brought by any other interested person or the University itself, therefore, we have not found any fault in the impugned judgment of the High Court, resultantly , the appeal stands dismissed having no force in it, with no order as to costs.