' MUHAMMAD YUNUS SURAKHVI, J.---This appeal by way of leave of the Court has been preferred against an order passed by the High Court on 6-10-1997, whereby the writ petition filed by respondents Nos.1 and 2 was accepted and the post of appellant was held as vacant and declared as without any lawful authority.
2. The necessary facts, giving rise to the present appeal, are that vide advertisement published in the Daily Nawa-e-Waqt, Rawalpindi on 23-7-1995, the post of Deputy General Manager in the Azad Kashmir Government Cooperative Bank in B-18 was advertised. The appellant as well as respondents Nos.1 and 2 applied for the said post. The Selection Committee recommended the appellant for appointment against the said post on which the order of his appointment was issued on 24-8-1995. The requisite qualifications for the post were graduation in Commerce or Economics with 10 years' Banking experience out of which 2 years' experience in B-17 was must. It was claimed in the writ petition that appellant did not possess the requisite experience for the post advertised and as such his appointment against the post was without any lawful authority. In the parawise comments submitted by the appellant and another (respondents before the High Court) it was admitted that appellant did not have the requisite experience as advertised for the post. However, it was stated that appellant was found having higher qualifications than the respondent who appeared for interview before the Committee and he was found fit for appointment on the basis of which his appointment was made against the said post. The appellant in pursuance of order of his appointment dated 24-8-1995, was to remain on probation for a period of 1 year who was confirmed through an order dated 3-9-1996, by the Chairman of Board of Directors. The High Court vide order dated 6-.30-1997, accepted the writ petition filed by respondents mainly on the following grounds:--
(i) that on the basis of advertisement published in the Daily Nawa-eWaqt on 23-7-1995, one of the qualifications for the post was 10 years' experience in Banking with 2 years in Grade B-17. As the appellant did not have the requisite experience for the post which was in fact a qualification for appointment against the said post thus in absence of requisite experience appointment of appellant was without any lawful authority;
(ii) that the contention that writ petition was liable to be dismissed on the basis of laches as the same was filed 1 year after the appointment of appellant could not have been accepted as correct for the reason that appellant not being qualified for the post could not be appointed and this disqualification being a continuous wrong could not be treated to be a right by lapse of time. The laches no doubt could be a good ground for dismissal of a writ petition, had the petition been actuated by malice or for any other motivated reason;
(iii) that the objection that respondents were not aggrieved persons within the meaning of section 44 of the Interim Constitution Act, 1974, could not be accepted as the dispute in the present case was with respect to the qualification and eligibility of the appellant to be appointed against the post; and
(iv) that the appellant could not be confirmed on the post before the expiry of period of probation and that too by the Chairman of the Board of Directors.
It is the aforesaid order passed by the High Court which is the subject of present appeal.
3. Arguing the case on behalf of appellant, it was vehemently contended by Sardar Rafique Mahmood Khan, the learned counsel for the appellant, that respondents along with the appellant had also appeared before the Selection Committee for interview but on merit they could not compete the appellant hence they could not challenge his appointment. The learned counsel strenuously submitted that the appellant having better qualifications than the respondents was appointed on the post in 1995 but his order was challenged in 1996 which clearly suffered by laches. The learned counsel referring Syed Shaukat Hussain Gillani v. Abdul Rehman Abbasi and others (1992 SCMR 369 = 1992 PLC (C.S.) 438) contended that if a person was not able to prove his eligibility for a post he could not be deemed as an aggrieved person. The learned counsel also contended that Azad Jammu and Kashmir Cooperative Bank (Staff) Rules, 1984, were not legally enforced, as such there being no breach of the relevant rules the writ petition filed by respondents was incompetent. The learned counsel for the appellant in support of his contentions also placed reliance on a reported case titled Muhammad Tariq Khan v. The State and another (1997 SCR 318).
4. Ch. Muhammad Ibrahim Zia, the learned counsel for General Manager, respondent No, 6, also supported the contentions raised by the learned counsel for the appellant. The learned counsel contended that as the post held by appellant does not fall within the purview of public office as such the writ of quo warranto filed by respondents was not maintainable. In support of his contentions the learned counsel placed reliance on Syed Manzoor Hussain Gillani v. Sain Mullah, Advocate and 2 others (PLD 1993 SC (AJ&K) 12), Ch. Muhammad Anwar v. Ch. Muhammad Rashid (PLD 1987 SC (AJ&K) 41) and Federal Public Service Commission, Islamabad v. Sufian Aslam (1993 SCMR 2275).
5. In reply it was contended by Syed Nazir Hussain Shah Kazmi, the learned counsel for respondent No, 1, that the impugned judgment passed by the High Court was unexceptionable and the relevant rules applicable to the instant case were the Azad Jammu and Kashmir Government Cooperative Bank (Staff) Rules, 1984. It was strenuously argued by the learned counsel that it was specifically incorporated in the advertisement published in the newspaper that the qualifications required for the post were graduation in Commerce or Economics with 10 years' Banking experience out of which 2 years in B-17 was a necessary prerequisite. The appellant having not fulfilled the requisite qualifications his appointment was against the statutory rules and as such of no legal effect. It was further elaborated by the learned counsel that the prayer clause of the writ petition filed by respondents positively suggests that it was a writ of quo warranto, whereby it was prayed that appointment of appellant being made as Deputy General Manager be set aside and the appellant may be asked to show cause as to in which capacity he was holding the said post. The learned counsel submitted that the respondents were aggrieved persons within the meaning of section 44 of the Interim Constitution Act, 1974, as the dispute in the case was with respect to the qualification and eligibility of the appellant to be appointed against the post. In the alternative it was strenuously contended by the learned counsel that in a writ of quo warranto it is not necessary that a petitioner seeking the relief should necessarily be an aggrieved person. The learned counsel in support of his contentions placed reliance on Azad Government and others v. Sahibzada Ishaq Zafar and others 1994 MLD 2382, Miss Azra Hafiz and 10 others v. Israr Hussain Mughal 1997 PLC (C.S.) 297 and an unreported case of this Court titled Muhammad Shahpal Qadri and another v.
AJK Government and others (Civil Appeal No,52 of 1992, decided on 28-4-1993) (1993 PLC (C.S.)
1161). The learned counsel also pressed into service the submission that the General Manager was not competent under law to confirm the appellant on the post of Deputy General Manager as it was only the Board of Directors which was vested with the powers of confirmation and appointment on the said post.
6. After hearing the respective contentions of the learned counsel for the parties and perusing the relevant record, it may be stated that it is clear from the perusal of the advertisement published in Daily Nawa-e-Waqt on 23-7-1995, that one of the qualifications for the post of Deputy General Manager is 10 years' experience in Banking with 2 years in Grade B-17. As the appellant did not possess the requisite qualifications for the post which rightly pointed out by the High Court is in fact a qualification for the appointment on the said post. Therefore, it requires no elaborated thought that in absence of requisite experience the appointment of appellant on the said post was without any lawful authority and of no legal effect. In view of the above situation we concur with the findings recorded by the High Court that appellant's appointment was without any lawful authority.
7. So far as the contention of learned counsel for the appellant is concerned that appellant having better qualifications and better merits than the respondent was eligible to he appointed on the said post merits no consideration for the simple reason that if a candidate does not fulfil the requisite qualifications prescribed for a particular post the question of considering his other qualifications, even though, those may be better than other candidates, could not have been taken into consideration. Similarly the contention raised by the learned counsel for the appellant that respondents were not aggrieved person within the meaning of section 44 of the Interim Constitution Act, 1974, also merits no consideration for the plain reason that the writ petition filed by them was that of quo warranto the requirement of which is that it is not necessary that the petitioners who filed the writ petition must necessarily be aggrieved persons. The prayer clause of the writ petition made by the respondents positively shows that a direction was sought from the Court to the effect that appellant should show cause as to in which capacity he was holding the said post. Similarly the point agitated by the learned counsel for the appellant that the Azad Jammu and Kashmir Government Cooperative Bank Limited (Staff) Rules, 1984, being not statutory in nature thus their violation could not have attracted the invocation of writ jurisdiction is also devoid of any legal force.
8. In an unreported case titled Muhammad Shahpal Qadri and another v. AJK Government Cooperative Bank Ltd. And others (Civil Appeal No, 52 of 1992, decided on 28-4-1993) (1993 PLC (C.S.) 1161), the brief facts were that one of the respondents joined his service as Accountant (Officer Grade-III) in BPS-16 on 18-7-1985 in the Azad Jammu and Kashmir Cooperative Bank. On 23-12-1990, the General Manager, Government Cooperative Bank Ltd., appointed respondent No,4 as Officiating Deputy General Manager. Subsequently, on 28-2-1991, Registrar, Cooperative Societies, respondent No,2, promoted respondent No,4 to the post of Deputy General Manager in BPS-18. This order was passed subject to approval of the Board of Directors of the Bank. The appellants filed a writ petition to challenge the aforesaid order passed on 28-2-1991, on the grounds, inter alia, that the Registrar had no power to pass the impugned order because it is only the Board of Directors which is competent under the relevant rules to pass such orders of promotion; that respondent No, 4 had only two years of service in BPS-17 and was not qualified for promotion as Deputy General Manager. A learned Judge in the High Court upheld the contentions of the appellants and held that promotion of respondent No,4 was in derogation of the established scheme of law but all the same dismissed the writ petition on the ground that no relief can be given to the appellants in exercise of writ jurisdiction because the service of the appellant was not governed by law or statutory rules. On appeal filed by appellants before this Court attending to the point as to whether in that case the rules governing the matter relating to the service of the parties are statutory rules or the same established shall only be deemed to be instructions for the guidance of the Bank Administration. It was opined by the Full Bench at page No, 15 of the judgment as follows:-- "It may be stated that the Cooperative Societies Act, 1925 was adopted in Azad Kashmir by an Act known as the Cooperative Societies (Application to Azad Jammu and Kashmir) Act, 1967. Under section 5 of the Act, the rules made under the Cooperative Societies Act, 1925 (Act VII of 1925) as they were in force in the West Pakistan, were also made applicable to the Azad Jammu and Kashmir territory until altered, amended or repealed under the aforesaid Act. At the time of adaptation of Cooperative Societies Act, 1925 in Azad Kashmir, the Cooperative Societies Rules, 1927 were in force in Pakistan which were framed by the Government under section 71 of the Cooperative Societies Act, 1925. Under Rule 55(1) of the said Rules, the Committee of every Cooperative Bank having a working capital of over rupees one lac, have to frame Rules for regulating the appointment; removal, dismissal and promotion of the employees. In other words, the power of framing rules regarding terms and conditions of service of employees of a Cooperative Society or a Bank was delegated to the Committee or the Board by virtue of Rule 55 of the Cooperative Rules (Application to Azad Jammu and Kashmir) Act, 1967. It follows from what has been stated above that the aforesaid Rules of 1927 were substituted by the Board as a delegatee of the powers under Rule 55 of Cooperative Societies Rules, 1927 read with subsection (3) of section 71 of the Cooperative Societies Act, 1925. Thus, in view of the aforesaid facts, the Rules of 1984 purported to have been framed under Bye-law No,17 would be deemed to have been framed under rule 55 of the Cooperative Societies Rules, 1927, read with section 71(3) of the Cooperative Societies Act, 1925 because mere wrong reference to law, rule or statute would not adversely affect the validity of the rules or the powers of the rule-making body, if such body otherwise had the jurisdiction to frame the rules.
' The next question which calls for resolution is as to whether Rules of 1984, in view of the circumstances listed above, are statutory rules or not. We are of the view that this question does not pose any difficulty because section 71 of the Cooperative Societies Act stipulates the framing of such rules by the Government or by its delegate. According to the definition of word 'Committee', 'Board' is included in it. Therefore, the aforesaid Rules of 1984 having been framed in pursuance of powers which vested in the Government and were elevated to the Board would be deemed to be the statutory rules and not the rules only for the guidance of the administration of the Bank Authorities."
9. Another submission made by the learned counsel for the respondents is that appellant was confirmed on his post by the Chairman of Board of Directors even before the expiry of the order of probation on 3-9-1996. This order too according to the learned counsel for respondents is volatile of the relevant rules. The legal position is settled that if the initial appointment is held as illegal and beyond jurisdiction the subsequent confirmation has to C follow the same consequences. The relevant rules postulate that it is the Board of Directors only which could order for the confirmation of appellant if his initial appointment was valid. In Shahpal's case it was observed at page 19 of the report as under:-- "The next question which needs determination is as to whether respondents Nos. 2 and 3 were competent to promote or appoint respondent No, 4 as Deputy General Manager. Under Rule,7 of the Rules, appointment as an officer of the Bank could be made by initial recruitment or by promotion. Under Rule 8 the General Manager can pass any order of appointment in respect of employees other than categories I, II and III; appointments of officers falling in categories I, II and III could be made by the Board; the respondent No,4 falls in Category I and only the Board was competent to pass the order regarding his promotion etc. The Registrar, Cooperative Societies, had no power whatsoever under the Rules to pass the impugned order."
Moreover, from the above-referred extracts of the judgment it becomes clear that Azad Jammu and Kashmir Cooperative Bank (Staff) Rules, 1984, are statutory in nature and if any violation of them is committed by the functionaries of the Bank its servants can validly agitate the matter by filing a writ petition. Thus, the contention that rules were not framed or adopted in Azad Jammu and Kashmir and were not of statutory nature and have not been enforced as such the Constitutional jurisdiction could not have been invoked, being devoid of any legal force is hereby repelled.
10. The next contention raised by the learned counsel for the appellant that order of appointment having been made on 24-8-1995 and the writ petition filed by respondent on 26-4-1996, nearly after about the lapse of eight months entailed dismissal of the writ petition on the ground of laches is also not tenable. The citation referred by the learned counsel for the appellant Azad Government and others v. Sahibzada Ishaq Zafar and others 1994 MLD 2382) is also of no help to the case of appellant. In the case referred to above, it was simply observed by this Court that mere delay in case of quo warranto is not fatal but in view of the circumstances of the case it was observed that it is yet to be ascertained after the resolution of controversial facts as to whether the respondent in that case was reluctant to administer oath of office to the Members of the Assembly due to mala fides because the question of mala fide had not been resolved by the High Court. The crux of the judgment was that delay coupled with malice would have been a ground for dismissal of writ petition.
11. In a case reported as Syed Manzoor Hussain Gillani v. Sain Mullah, Advocate and 2 others (PLD 1993 SC (AJ&K) 12) it was observed at page 19 as under:-- "It may be observed that the principle of laches is not strictly applicable to a case of quo warranto but it is definitely a relevant consideration in case of a quo warranto if mala fide is pleaded in defense. In the present case it has been argued on behalf of the appellant that the relater- respondent who was a practicing Advocate of the High Court did not challenge the enrolment of the appellant as pleader, Advocate or his appointment as Advocate-General and the Judge of the High Court earlier and he came with the present writ petition only to wreak vengeance and not with bona fide intention of upholding the majesty of law or in the public interest. It was argued that the question of laches is very relevant in this case because it is on the record that the present petition was filed only when the appellant, herein, as Judge of the High Court, moved the Chief Justice of the High Court to initiate the contempt of Court proceedings against the contesting respondent in a case. A notice of the contempt of Court was issued by the Chief Justice at the instance of the appellant who as Judge of the High Court was seized with the matter in which contempt was alleged to have been committed. Thus, for judging the 'bona fides' of contesting respondent, the question of laches is not only relevant but also important. The writ petition entailed dismissal on the sole ground of mala fide irrespective of the merits of the writ petition."
12. In the instant case no specific mala fide was alleged. It was simply averred in the written statement that petition was filed by mala fide intention. The plea was not supported during the arguments either in the High Court or before this Court nor it finds support from the record. Thus, we are of considered view that in a case of quo warranto delay is a good ground of defence provided it is actuated by malice or the writ petition is filed on motivated considerations. The same principle was reiterated in a recent case titled Raja Bashir Ahmed Khan v. Azad Jammu and Kashmir Council and 'others (Civil Appeal No, 40 of 1997, decided on 20-1-1998).
13. The upshot of the above discussion is that finding no force in this appeal, it is hereby dismissed without making any order as to costs.