MUHAMMAD YOUNAS TAHIR, J. The petitioner seeks review of the judgment of this Court dated 07.09.2021, whereby the appeal filed by respondent No.1, herein, has been accepted.
2. The facts forming the background of the instant review petition are that vide advertisement, dated 08.08.2018; various posts were advertised by the University of Poonch, Rawalakot, including one post of the Assistant Professor (Plant Pathology) and one post of the Assistant Professor (Chemistry), to be filled in on the basis of Tenure Track System (TTS). The condition No.11 of the advertisement provided that preference would be given to the AJ&K Nationals. Besides other candidates, Saira Banaras, petitioner, herein, applied for her appointment against the post of Assistant Professor (Plant Pathology), whereas, another candidate namely, Dr. Muhammad Usman Hameed applied for his appointment against the post of the Assistant Professor (Chemistry). Both the above named filed the separate writ petitions before the High Court claiming therein, that Chapter-II, Rule 5(a) of the University of Azad Jammu and Kashmir Service Statutes, 1981, (hereinafter to be referred as Service Statutes, 1981), provides that no person shall be eligible for appointment to the service of the University by direct recruitment unless he is a Jammu and Kashmir State Subject Class-I, however, the Selection Board in derogation of the aforesaid statutory provisions recommended Dr. Raees Ahmed against the post of Assistant Professor (Plant Pathology) and Dr. Javed Ali Khan, against the post of Assistant Professor (Chemistry) who are non-State Subjects. They prayed for setting aside the recommendations of the Selection Board and also solicited a direction for their appointments against the posts in question.
3. Both the writ petitions were clubbed together by the learned High Court. After necessary proceedings, the learned High Court-through consolidated judgment dated 21.07.2020, accepted both the writ petitions while directing the University to consider the petitioner, herein, Dr. Muhammad Usman Hameed for appointment against the posts of the Assistant Professors. Feeling aggrieved from the impugned judgment of the High Court, two separate appeals, with leave of the Court, were filed before this Court. Civil Appeal No.454/2020, was filed by Dr. Raees Ahmed to the extent of the writ petition filed by the petitioner, herein, whereas, Civil Appeal No.455/2020, was filed by the University of Poonch against the whole impugned judgment. This Court accepted both the appeals and dismissed the writ petitions filed by the petitioner herein, and Dr. Muhammad Usman Hameed, vide impugned judgment dated 07.09.2021, hence, this review petition by the petitioner.
4. At the very outset, when the learned counsel for the petitioner was confronted to the preposition that the certified copies of the impugned judgment had not been obtained by the petitioner, herein, nor his counsel, or her authorized representative rather the same had been obtained by an alien person namely, Rana Sarfraz. The learned counsel for the petitioner could not satisfy the Court.
5. It is a long standing principle of law, settled by the superior Court of Pakistan as well as this Court that if a thing is required to be performed in any prescribed manner, that must be performed according A to that manner or not otherwise. Under Article 42-A(4) of the Azad Jammu and Kashmir Interim Constitution, 1974, the Supreme Court of Azad Jammu and Kashmir is empowered to frame rules in consultation with the Government for regulating the practice and procedure of the Court. To that effect the Supreme Court of Azad Jammu and Kashmir has framed the Azad Jammu and Kashmir Supreme Court Rules, 1978, as amended time to time to regulate the practice and procedure of the Court. Under Order XLVI, Rule 3 of the supra Rules, it is requisite that "Every application for review shall be accompanied by a certified copy of the judgment or order complained of ......" but in the instant case the certified copy annexed with the review petition has not been obtained by the 'petitioner' or her 'counsel' or her 'authorized representative' rather the certified copy has been obtained by some person who is totally stranger to the proceedings of the case at all levels and before all forums. In this scenario, the attested copy attached- with memorandum of the review petition cannot be termed, under Rule 3 of Order XLVI of the Azad Jammu and Kashmir Supreme Court Rules, 1978, as 'a certified copy of the judgment or order complained of'. The copy should have been obtained by the petitioner herself, her counsel or authorized representative/agent but there is nowhere mentioned in the memorandum of review petition to the effect that what is the concern of the person who has obtained the copy of the impugned judgment of this Court and nexus with the proceedings of the case. This sole ground is sufficient to declare the review petition as incompetent. Our this view finds support from a reported case of this Court, titled, "Azad Jammu and Kashmir Government through Chief Secretary, Muzaffarabad and 2 others v. Ch. Khadim Hussain," (2005 CLC 1025).
7. The learned counsel for the petitioners under the mistaken belief that if the copy of relevant document is obtained by any person / representative of the Department, that can be utilized by any other person who was party to the litigation but has not obtained the same personally to agitate the cause in appellate forum for the benefit of the Department. In a case titled Habibullah v. Government of Punjab and others PLD 1980 Karachi 337, a decision which was required to be taken in a meeting under law, was taken by all the members through circulation of the paper. This practice was not approved by the High Court. The disapproval was recorded in the following words: "... It is now firmly established that when law provides doing of a particular thing in a particular way, all other modes of doing it are prohibited."
8. In a case reported as Azad Government and another v. Mujahid Hussain Naqvi 2002 SCR 302, the late Chief Justice while dismissing the petition for leave to appeal observed as follows: "... Rule 3 of Order XIII postulates that the petitioner shall lodge at least four copies of his petition for leave to appeal and the judgment and order sought to be appealed from together with grounds of appeal or the application before the High Court but in the instant case the Government or none of its representatives lodged their petition for leave to appeal along with the judgment sought to be appealed from as the copy of the judgment or order sought to be appealed from shows that it was obtained by one Syed Zahoor-ul-Hassan Gillani who appears to be totally alien to proceedings in question."
9. The aforesaid view was subsequently approved by this Court in a case reported as State v.
Naseer Ahmed and another 2004 SCR 104 in the following manner: ... Under Order XIII, Rule 3 of the Supreme Court Rules, petition for leave to appeal is required to be accompanied by the judgment and order sought to be appealed from along with the grounds of appeal before the High Court. It is the requirement of rules that copies must be obtained in the name of State by a person duly authorized in this behalf. In the present case the copies have not been obtained by the Advocate-General or any other person authorized in this behalf, therefore, the mandatory provisions have not been complied with. This petition for leave to appeal, therefore, is not competent."
10. In a recent case titled Deputy Inspector-General of Police and another v. Lal Khan Civil P.L.A.
No.87 of 2004 decided on 10-1-2005 it was observed that legally the copies of the impugned judgment should have been obtained by the petitioners in their own names either personally or through their attorney or Advocate, whereas the copies had been obtained by the P.D.S.P. Through Raja Muhammad Arif Khan. It was observed that as the copies were obtained by a stranger, therefore, the same could not be used for availing the appellate jurisdiction of this Court. The petition for leave to appeal was therefore, dismissed.
11. In another latest case titled Secretary Home and another v. Mushtaq Ahmed Qureshi Civil P.L.A.
No.172 of 2004 decided on 10-1-2005 it was observed that the copies which were appended with the memorandum of petition for leave to appeal were obtained by a Prosecutor of the Police Department through some Muhammad Matloob, whereas under law either the petitioners should have obtained the copies in their own name or through their attorney or the Advocate duly authorized to meet the requirements of the Supreme Court Rules. It was, therefore, held that the callous attitude adopted by the petitioners was sufficient for the dismissal of their petition for leave to appeal.
Again the preposition came under consideration of this Court, in the case titled, "Regional Manager Utility Stores v. Babar Iqbal and another, (2016 SCR 773), and the view expressed by this Court in earlier judgments was reiterated as under: " In' the present case, the acquittal appeal was filed by Changez Khan, Regional Manager Utility Stores, Jehlum Valley, Muzaffarabad. The copy of the judgment of the trial Court has been obtained by some Muhammad Farooq Khan through Sakhawat Ahmed, Stores In-charge, Utility Stores Bagh.
The copy has not been obtained by the Regional Manager Stores, Changez Khan. It is nowhere mentioned that what son of concern Muhammad Farooq khan has got with the case. Muhammad Farooq Khan, who has obtained the copy of the judgment, is an alien to the proceedings, as such the copy annexed with the memorandum of appeal cannot be termed as a copy of the judgment as required under law and the appeal cannot be treated as a valid appeal under Section 419, Cr.P.C. It was not competently filed. It merited dismissal.
After perusing the judgment under review, it reveals from the para No.7 of the impugned judgment that the learned Advocate appearing in the review petition on behalf of the petitioner, herein, did not argue the case separately, when the learned counsel for the parties were heard during hearing of the arguments of the appeal before this Court. It is worth mentioning here that the learned Advocate i.e., Sardar Abdul Rauf adopted the arguments advanced by the learned Advocate for respondent No.2 Syed Nazir Hussain Shah Kazmi and did not make any separate arguments before this Court. It would be useful to reproduce the para No.7 of the judgment under review, which is as under:- "7. Sardar Abdul Rauf Khan, Advocate, the learned counsel representing respondent No.1 adopted the arguments advanced by the learned counsel for respondent No.2 and prayed for dismissal of both appeals."
Therefore, in our considered opinion the learned counsel for the petitioner, herein, also sworn false affidavits attached with the review petition and also gave wrong certification regarding justification of the instant review petition. Particularly, when the learned Advocate did not argue in Civil Appeal No.454 of 2020, then how the learned Advocate can raise such like plea in the instant review petition that his arguments were not properly attended and decided by this Court.
Therefore, in our estimation the learned counsel misstated the facts while pleading the instant review petition.
The nutshell of the above discussion is that the instant review petition has incompetently been filed, which merits dismissal. Hence, the C same is dismissed with cost of Rs.10,000/-