1. RAZA ALI KHAN, J. Through this petition filed under Article 44 of the Azad Jammu and Kashmir Interim Constitution, 1974, following relief is prayed for:- "It is, therefore, respectfully prayed that the writ petition may kindly be accepted and the appointment of respondent. No. 1 as Assistant Professor Computer System Engineering (BPS-19) together with appointment order dated 31.10.2011 and proclamation dated 27.10.2010 may kindly be declared to be illegal, void ab initio, mala fide, abuse of powers, against the law, against the interest of the State Subjects, against. Constitutional provisions, without lawful authority and of no legal effect and be quashed and the salaries and allowances together with all monetary and non- monetary emoluments and benefits given/paid to respondent No.1 by MUST may kindly be ordered to be recovered and deposited into MUST account."
2. Precise facts of the case are that petitioner is 1st Class State Subject of Azad Jammu and Kashmir and resident of District Mirpur. It was submitted that respondent No. 1 is non-State Subject and is holder of Master Degree in the Subject of Electrical Engineering from Azad Jammu and Kashmir University. It was further submitted that University of Science and Technology, Mirpur (hereinafter to be referred as MUST) was established under the Ordinance known as Mirpur University of Science and Technology (MUST) Ordinance, 2008 and as per subsection of Section 33 of the Ordinance, all persons employed by the University in accordance with the terms 'and conditions of service prescribed by statute are persons in service of the government for the purpose of any Court or Tribunal set up by law in terms of Article, 47 of the Azad Jammu and Kashmir Interim Constitution, 1974. It was contended that it came to the knowledge of the petitioner that respondent No. 1 has been employed in MUST as Assistant Professor Computer System Engineering for which he was neither qualified nor eligible, therefore, his appointment in the MUST is illegal, arbitrary and liable to be set aside. Respondent No. 1 filed written statement, wherein, he refuted the claim of the petitioner and submitted that the writ petition has been filed with mala fide intention as proxy litigation.
3. The learned counsel appearing for the petitioner argued that the qualification of respondent No. 1 is Master in Electrical Engineering, therefore, he was not eligible to be appointed as Assistant Professor Computer System Engineering. The learned Advocate further argued that under the statute of MUST, a non-State Subject can only be employed in the service of the University if no eligible State Subject is available while in the case in hand, one Muhammad Shabir 1st Class State Subject was eligible to be appointed against the post in question. The learned Advocate further contended that as the petitioner has filed a writ of quo-warranto for supremacy of law in public interest, therefore, neither laches attracts in the case in hand nor it is necessary that the petitioner is aggrieved from the impugned order.
4. The learned counsel appearing for the respondents argued that the private respondent was appointed as Computer Engineer B-17 on 05.05.2007 on the same condition which was not challenged. The learned Advocate further argued that alongwith respondent No. 1, some other non- State Subjects were recommended by the Selection Committee and have been appointed but the petitioner with mala fide intention chose to challenge only the appointment of the private respondent. The learned Advocate contended that the petitioner is not aggrieved from the order and has filed the petition as proxy litigant on behalf of rival employees of respondent No. 1. The learned Advocate further contended that the petition is also hit by the laches. The learned counsel in support of his submissions placed reliance on the following case-law:--
1. PLD 1993 SC AJK 12.
2. 2003 SC 763
3. 2014 SCR 684.
5. I have heard the learned counsel for the parties and gone through the record of the case.
6. It is well-established principle now that writ of quo-warrant should be refused where it is outcome of especially where it apparently shows that a petition styled as public interest litigation is nothing but a camouflage to foster personal dispute. The petitioner through the captioned writ of quo- warranto has challenged the appointment of respondent No. 1 as Assistant-Professor Computer System Engineer B-19 dated 31.10.2011 on the ground that neither respondent was eligible nor was qualified to be appointed as such. No doubt, for filing writ of quo-warranto, it is not necessary that the person approaching the Court is aggrieved from the impugned action nor ladies. can be attracted in stricto senso, however, it is well-established principle of law that for filing writ of quo- warranto, the approach of the petitioner to the Court must be bona fide and with clean hands.
7. While deciding a writ of quo-warranto, the first question which has to be considered by the Court is the bona fide of the petitioner and for judging bona fide of the petitioner the Court can consider, that there must be real and genuine public interest involved in litigation and concrete or credible basis for maintainability of cause before Court and not merely advantage of a bright errant borne out of wishful thinking and it cannot also be invoked by a person body of persons to further his or their personal grudge and enmity. The delay in filing writ petition can also be considered to judge the bona fide of the petitioner and the facts which compel the petitioner to file the writ petition. In this regard, I may referrer to case titled Muhammad Liaqat Munir Rao v. Shamas ud-Din and others reported as 2004 PLC (CS) 1328, wherein, the apex Court of Pakistan in para No. 9 of the judgment observe as under:--- "9. The question of conduct of a writ petitioner and the delay in filing a writ of quo-warranto was considered in a number of cases. In the Full Court judgment in Federation of Pakistan v. Haji Muhammad Saifullah Khan and others (PLD 1989 SC 166 at page 218) the relevant observations made in earlier case of Dr. Kamal Hussain and 7 others v. Muhammad Sirajul Islam and others (PLD 1969 SC 42) were reproduced as under:--- "Under Article 98(2)(b) 'any person and not necessarily an aggrieved person can seek redressal from the High Court against the usurpation of a public office by a person who is allegedly holding it without lawful authority'. On that account it cannot be doubted that Mr. Siraj-ul-Islam did have the locus standi to file the petition. But the grant of relief in writ jurisdiction is a matter of discretion, wherein it' is quite legitimate on the part of the High Court to test the bona fides of the relator to see if he has come with clean hands. A writ of quo-warranto in particular is got to issue as a matter of course on sheer technicalities on a doctrinaire approach. In the present case, considering all the circumstances I cannot escape the feeling that Mr. Siraj-ul-Islam is not entirely playing his own game, for high altruistic motives, and that he has instituted the writ petition not so much for the vindication of any public right or the redressal of a public wrong as to redeem the discomfiture of the defeated candidates, and to fight their battle on another front which some of them had already waged by the process of the election petitions within its limitations, The delay has occurred in the filing of the petition which has not been satisfactorily explained is not without effect on the grant of this discretionary relief."
8. Similar observations have been recorded by the apex Court of Azad Jammu and Kashmir in case titled Syed Manzoor Hussain Gillani v. Sain Mullu Advocate reported as PLD 1993 SC AJ&K 12. The relevant observations are reproduced as under:- "It may be stated that delay in a case of quo-warranto is considered as an important piece of evidence in support of plea a mala fides of the relator. It is specially so when the relator was apt an aspirant to the office which he intends to get vacated. It is settled 'principle of law that in absence of bona fides a writ of quo-warranto must be refused on this sole ground."
9. The petitioner in the case in hand did not place on record any proof from which it could be ascertain that he is an educated person and law knowing as well. He has not challenged the appointments of other non-State Subjects appointed in the University or other institutions of the State while it is evident from the record that the Selection Committee recommended four candidates in his meeting held on 13.04.2013, for the post of Assistant Professor B-19 including the petitioner and all the recommended candidates were non-State Subjects, however, petitioner only challenged the appointment of private respondent No. 1, which clearly shows the mala fide intention on the part of petitioner. During arguments the learned counsel for the petitioner also placed on record a copy of State Subject Certificate of one Muhammad Shabbier and stated that he was the state subject and was eligible candidate to be appointed. It is sufficient to strengthen the apprehension that the petitioner has-fighting a proxy litigation. The petitioner who has failed to prove 'his bona fide character and nothing is on the record which could prove his claim that he filed the writ for supremacy of law". The petitioner is not aggrieved from the impugned order nor it is evident from the record that lie filed the petition for the supremacy of law, hence, on this ground too, the writ of quo-warranto, which is discretionary jurisdiction of the Court, is liable to be refused.
10. In 2004 PLC (CS) 1328, supra, it was observed that proxy litigation is liable to be depreciated by the Courts. The relevant observation recorded at para 8 of the judgment is reproduced as under:--- "We have heard the learned counsel for parties at length. We find that the respondent No. 1 being a driver of the Commission lacked bona fide in filing the writ of quo-warranto against the petitioner after favourable orders had been passed by the Federal Government and the Minister. It is unfortunate that sometimes the ministerial staff becomes instrumental in the hands of other senior officers in the matter of inter-departmental rivalries so as to involve itself in vexatious litigation. It is high time that the growing tendency on the part of public servants and other persons to institute proceedings by way of writs of quo-warranto with oblique consideration or motives and just like puppets is to be deprecated by the Courts. The learned counsel for respondent No. 1 could not give any explanation whatsoever as to what had prompted him to file the writ petition after a deep slumber of more than a decade. In an appropriate case the Court is entitled to look into the conduct, motive or lack of bona fides of a petitioner and also the delay in filing a writ petition in the nature of quo-warranto for the purpose of grant of refusal or relief in the exercise of discretionary jurisdiction. The writ of quo-warranto is not issued as a matter of course on hyper-technicalities.
11. The Court can see whether such a person has come with clean hands so as to deserve its indulgence."
12. The learned counsel for the petitioner forcefully argued that the captioned writ petition is filed in public interest, therefore, it is necessary to take note of the meaning of the expression "public interest" which has been defined in Black's Law Dictionary (6th Edition) as follows:- "Public Interest: Something in which the public, the community at large, has some pecuniary interest, by which their legal rights or liabilities are affected. It does not mean anything so narrow mere curiosity, or as interests of particular localities, which may be affected by the matters in question. Interest shared by citizens generally in affairs of local, state or national government.
13. If by public permission one is making use of public property and he chances to be the only one with whom the public can deal with respect to the use of that property, his business is affected with a public interest which requires him to deal with the public on reasonable terms. The circumstances which clothe a particular kind of business with a "public interest," as to be subject to regulation, must be such as to create a peculiarly close relation between the public and those engaged in it and raise implications of an affirmative obligation on their part to be reasonable in dealing with the public. One does not devote his property or business to a public use, or clothe it with a public interest, merely because he makes commodities for and sells to the pubic in common callings such as those of the butcher, baker, tailor, etc. A business is not affected with a public interest merely because it is large, or because the public has concern in respect of its maintenance, or derives benefit, accommodations, ease, or enjoyment from it".
14. It is thus clear from the above reproduced definition of words "public interest" that only a person acting bona fide and having sufficient interest in the proceedings of public interest litigation will alone have a locus standi and can approach the Court to wipe out the tears of the poor and needy, suffering from violation of their fundamental rights, but not person for personal gain or profit or political motive or personal grievance or on the direction of anyone else who could not come himself in Court.
15. It also appears from the record that the order has been issued on 31.10.2011, whereas, the writ petition has been filed on 19.09.2012, after a period of 11 months. As stated above, to judge the genuineness of a litigant, the unreasonable delay for approaching the Court can also be. considered. The petitioner could not explain that which fact compelled him to file the writ petition after delay of 11 months, hence, on this ground too, the writ petition is liable to be dismissed: The argument of the learned counsel for the petitioner that respondent No. 1 was not eligible to be appointed as Assistant Professor Computer System Engineering because he is in possession of Master Degree in Electrical Engineering which is not relevant to the post of Computer System Engineering, has no substance. As per advertisement the qualification for the post of Assistant Professors (BPS-19) is mentioned as:--- "Ph.D. in the relevant field from HEC recognized university/institution (No experience required) or Master's degree (Foreign) or M.Phil. (Pakistan) in the relevant field from HEC recognized university/institution with four years teaching/research experience in a recognized university or a post graduate institution or professional experience in the relevant field in a National or International Organization."
16. The learned counsel for the respondents placed on record a notification dated 27.07.2016, whereby the Vice Chancellor MUST has accorded approval for consideration of (i) Computer Systems Engineer; (ii) Computer Engineering; (iii) Electrical Engineering; (iv) Electronic Engineering; (v)
17. Software Engineering; for the department of Computer Systems Engineering, thus, the arguments of the learned counsel for the petitioner that respondent No. 1 is not in possession of required qualification in the relevant field for the post of Assistant Professor Computer Systems Engineering is misconceived, hence, repelled accordingly.
18. So far the argument of the learned counsel for the petitioner that non-State subject cannot be appointed in the University in presence of eligible candidates having State Subject of Azad Jammu and Kashmir, is concerned, it may be stated that record reveals that 5 candidates were declared eligible and were interviewed and out of them only three were selected, by the Selection Board, who all were non-State Subjects. It is not disputed that in case of non-availability of State Subjects, non-State Subject can be appointed and the authority can relax the condition of State subject. The same like proposition came under consideration of this Court in writ petition No. 572/2001 titled Raja Muhammad Khurshid Khan v. Vice chancellor of Azad Jammu and Kashmir University and others decided on 23.05.2002, the Court observed as under:- It may be observed that it is not the case of the petitioner that respondent No. 4 is not eligible for appointment as Registrar or is lacking the qualification prescribed by the relevant rules. The only grievance of the petitioner is that in presence of a State Subject, respondent No. 4 cannot be appointed. In my opinion, this contention of the petitioner is devoid of any force. The relevant rules as well as advertisement provide a condition that in case of non-availability of a State Subject, any other person can be appointed. It is also not denied by the petitioner that the competent authority has no power to relax the condition of a State Subject. The fact alleged by the respondents that the petitioner himself is not qualified for the post of Registrar, is riot rebutted by filing replication or an affidavit by the petitioner. The aforesaid assertion of respondent in absence of replication or affidavit, would be deemed to have been admitted by the petitioner."
19. Thus, the argument of the learned counsel for the petitioner has no substance in it, hence, is repelled.
20. Before parting with the case it may be observed that public interest litigation is a weapon which has to be used with great care. The Court has to be extremely careful to see that behind the beautiful veil of public interest is there an ugly private malice, vested interest, thirst of publicity and proxy litigation. No doubt, public interest litigation is to be used as an effective weapon in the armory of law for delivering social justice to the citizen. It should be encouraged and aimed at redressal of public-at-large but it should not be founded on personal grudges and for personal gain. A time has come to weed out of the petitions which though titled as public interest litigation are in essence something else. It is shocking to note that Courts are flooded with a large number of scaled public interest litigations, whereas only a small percentage can legitimately be called as public interest litigation. It is depressing to note that on account of such trumpery proceedings before the Courts precious time is wasted which time otherwise could have been spent for the disposal of genuine cases of litigants who are waiting for the disposal of cases since long.
21. In view of above finding no substance in this petition, it is hereby dismissed.