BA$HARAT. AHMAD SHAIKH, J.---Aisha Hameed Qadri has filed a petition for leave to appeal to challenge an order by which the High Court has granted interim relief in favour of respondent No.2 Rahat Saeed Bukhari. The matter is of urgent nature and both the parties are present. Therefore, the petition for leave to appeal is converted into appeal and is being decided accordingly. It may be pointed out that in the memorandum of appeal Nomination Board has been impleaded as a respondent but in fact the. Board is only pro forma-respondent because the interim order challenged before us has been passed against it and not in its favour. The only beneficiary of the order under appeal is respondent No.2.
2. The dispute relates to nomination of state subjects against seats reserved in the Medical Colleges in Pakistan., The facts are that nomination to medical seats had been completed when an additional seat was also made available. Respondent No.2 Rahat Saeed Bukhari was nominated against the seat but her nomination was challenged by appellant Aisha Hameed Qadri by filing a writ petition which was accepted by the High Court. An appeal was brought to this Court by Rahat Saeed Bukhari but it was dismissed. The finding recorded by the High Court and upheld by this Court was that Aisha Hameed, who had already been nominated to a B.D.S. Seat, should have been awarded the additional seat and her place could be taken by Rahat Saeed Bukhari. Accordingly direction was issued to the Nomination Board to withdraw Rahat Saeed Bukhari from the Medical College and to nominate Aisha Hameed Qadri in her place.
3. During the course of arguments before this Court in the previous appeal an objection was raised on behalf of Rahat Saeed Bukhari, who was the appellant that during the pendency of the writ petition in the High Court Iram Shahzadi and Nasira Qadeer were nominated by the Nomination Board as a result of some judicial pronouncements but Aisha Hameed Qadri failed to implead the aforesaid two nominees as respondents in the writ petition and thus the writ petition was liable to be dismissed on that ground. On this point this Court made the following observation:- "We have given consideration to the above reflected question in the light of arguments advanced at the Bar. It may be stated that from the record and written arguments filed by the appellant in the High Court, it transpires that the point of non-impleadment of [ram Shahzadi and Nasira Qadeer was not pressed in the High Court. Besides, the present dispute pertains to the additional seat and Iram Shahzadi and Nasira Qadeer were nominated out of the quota of five seats which were originally available; they had been not admitted to Medical College when present writ petition was filed. Thus, they were necessary party ir, the present writ petition. The appellant, if feels aggrieved by their admission, may seek the redressal of her grievance against them in proper forum through appropriate means. Therefore, the contention of the learned counsel for the appellant that writ petition was not properly constituted has no force and is hereby repelled."
4.The judgment of this Court was announced on 16th October, 1996. On 12th of December, 1996 the Nomination Board passed an order to implement the judgment of the High Court as upheld by this Court. By that order Aisha Hameed Qadri was nominated to take place of Rahat Saeed Bukhari in Fatima Jinnah Medical College, Lahore and Rahat Saeed Bukhari was nominated to the B.D.S. Course in place of Aisha Hamt:ed Qadri. As is claimed by the respondent Rahat Saeed Bukhan, in pursuance of the observation made in the portion of the judgment reproduced above Rahat Saeed Bukhari filed a writ petition in the High Court on 16th of December, 1996 and also prayed for an ad interim relief. A learned Judge passed the following order on 17th of December, 1996:-- "A copy of the petition shall be supplied to the Azad Jammu and Kashmir Nomination Board for parawise comments upon the petition and to show cause as to why the petition may not be admitted for regular hearing.
2. There is also an application which is supported by an affidavit for an ad interim relief. It is directed that the petitioner shall not be disturbed from the seat she is holding, provided that the order of Supreme Court earlier passed is not violated subject to objections from the other side. To come up on January 28, 1997."
5. It is stated before us that when Nomination Board received this order a message was sent to the concerned authorities in Pakistan not to implement the decision of the Nomination Board mentioned above which had been communicated earlier to the Federal Ministry of Health. This appeal has been filed to challenge the order reproduced above.
6. We have heard arguments from both sides. We find force in the submission made by Raja Muhammad Hanif Khan that the High Court has violated rule 34 of the High Court Procedure Rules which lays down that:- "34. Where an application for stay or any other interim relief is made in any such petition no order shall be passed thereon unless seven days' notice of motion has been served by the petitioner on the person sought to be affected by the order: Provided that the bench may in emergent cases dispense with the notice of motion nor curtail the period thereof."
7.Before granting interim relief no notice was given to the other party. The High Court did not pass an order dispensing with the notice or to curtail the period thereof. In our view it was clearly a case in which the other party should have been heard before passing the order. This Court has in a number of cases A set aside the orders passed by the High Court in violation of rule 34 reproduced above, but the violation of rule 34 appears to have become a rule in the High Court. This not only results in inconvenience to the parties but also interests of justice suffer in this process. On this point we may refer to Azad Government v. Sardar Parvaiz and others (1994 SCR 254). The order under appeal has, therefore, to be set aside on this short ground.
8.We also find that the order under appeal appears to be contradictor The order passed by the Nomination Board on 12th of December, 1996 was challenged before the High Court. It is clearly laid down to the said order that ii was being passed to implement the orders of the High Court and the Supreme Court. However, the learned Judge in the High Court directed that Rahat Saeed Bukhari should not be disturbed from the seat she was holding and also attached a condition that thereby the order of the Supreme Court shall not be violated. If the ends of justice warranted that Rahat Saeed Bukhari should not be disturbed from the seat she was occupying the learned Judge should have himself applied his mind as to how it could be done without violating the order of this Court.
This matter could not be left to be decided by the Nomination. Board. In light of these two facts we have no opinion but to set aside the order passed by the High Court and we order accordingly.
However, the High Court may pass an order keeping in view the provision of rule 34 of the High Court Procedure Rules and the observation made above.