1. BASHARAT AHMAD SHAIKH, J.---A writ petition filed by the appellant in connection with a service matter which was pending in the High Court when respondents Nos. 1 to 4 moved an application that they may be impleaded as respondents in the writ petition. The application has been accepted. Muhammad Iqbal was granted leave to challenge the aforesaid order.
2. In order to examine the dispute raised in this appeal, the facts which seems to be relevant are that the appellant, who was an Overseer in the Government Printing Press, filed a writ petition in the High Court on 14th October, 1996 wherein he prayed that the respondents may be restrained from ousting him from Government Printing Press. He contended that his transfer to the Press as Overseer from the Azad Kashmir Logging and Saw Mill Corporation on 25th January, 1993 was a perfectly valid order and could not be recalled. The appellant was able to secure a stay order from the High Court but somehow it could not be implemented and the appellant was transferred and was ordered to report to the Services and General Administration Department. The appellant amended his writ petition so as to challenge the order of his transfer from the Government Printing Press. After about 15 months respondents Nos. 1 and 4 moved an application for being impleaded as respondents. We will advert to the contents of the application at the proper stage. The application was accepted.
3. The appellant has challenged the order by which the above respondents were impleaded as respondents in the writ petition. It was vehemently contended by the learned counsel for the appellant. Mr. Abdul Rashid Abbasi, that the above respondents are neither necessary nor proper parties and have been wrongly added as respondents by the High Court. He submitted that the appellant had served in the Government Printing Press from, 25th January, 1993 to 15th October, 1996 but the above respondents did not challenge his appointment in any Court of law. It was also pointed out that the application for addition of parties was moved more than 15 months after institution of the writ. Mr. Abdul Rashid Abbasi, submitted that these two factors were sufficient to show that the respondents have no legal grievance but were only obstructing proceedings in the writ so as to deprive the appellant from the relief which he is entitled to get from the High Court. In support of his submission that respondents Nos. 1 to 4 were neither necessary nor proper parties the learned counsel relied on Muhammad Sadiq (deceased) represented through Legal Representatives v. Muhammad Rafiq etc. 1985 SCM R 376, Pakistan Banking Council and another v.
4. Ali Maohtaram Naqvi and others 1985 SCM R 714, Altaf Parekh v. Delments Construction Company (1992 CLC 700) and Mst. Huma Ghauri v. Zaheeruddin and 4 others (1985 CLC 762).
5. The learned counsel for respondents Nos.1 to 4, Ch. Muhammad Ibrahim Zia, submitted that the appellant was posted in the Government Printing Press on 25th January, 1993 by way of transfer but was not permanently absorbed in the service of the Government Printing Press. He stated that Service Rules were subsequently promulgated on 7th February, 1995 but the appellant was not qualified to be permanently absorbed in the Government Printing Press. He submitted that respondents Nos. 1 to 4 did not challenge the posting of the appellant in the Government Printing Press when that arrangement ended on 14th October, 1996 the grievance of his client came to an end. It was contended by Ch. Muhammad Ibrahim Zia that his client had the right to counter the efforts of the appellant which he is making through the writ petition to come back to the Government Printing Press because if he does not come back to the Government Printing Press the respondent will be promoted due to the vacancy caused by the repatriation of the appellant. It was contended that the respondents have been rightly added as respondents in light of Order I, rule 10(2) of the Civil Procedure Code which, according to the learned counsel, is applicable to proceedings in a writ petition by virtue of rule 42 of the Azad Jammu and Kashmir High Court Procedure Rules. In support of his contentions he cited Muhammad Ashraf and 8 others v. Azad Government of the State of Jammu and Kashmir and 13 others PLD 1985 SC (AJ&K) 102).
6. Kh. Shahad Ahmad, the learned counsel who represented the Azad Government and other Government functionaries, raised an entirely different argument by contending that so far as addition of parties is concerned Civil Procedure Code is not applicable to proceedings in writ jurisdiction. He put forward the point that a combined reading of rule 42 and rule 37 of the Azad Jammu and Kashmir High Court Procedure Rules, 1984 shows that although Civil Procedure Code is generally applicable as far as practicable, to writ proceedings but so far as addition of parties is concerned this aspect has been specifically dealt with by rule 37 which makes rule 42 inapplicable to the matter of addition of parties. Rule 42 is in the following terms:-- "Without prejudice to the foregoing rules, the provisions of the Code shall as far as practicable apply to the proceedings under Part B of this Chapter".
7. The other rule referred by the learned counsel is rule 37 which is as follows:-- "On any hearing of such petition, any person who desires to be heard in opposition to the motion and appears to the Court to be proper person to be heard shall be heard notwithstanding that he has not been served with the notice of motion and shall be liable to costs ordered by the Court in its discretion. The procedure prescribed in rule 35 shall be applicable to such person as well".
8. In light of this contention, Kh. Shahad Ahmad contended that rule 10(2) of Order 1 of Civil Procedure Code being inapplicable, the respondents Nos. 1 to 4 could not be legally added as respondents but they were proper persons within the meaning of rule 37 to be heard by the High Court.
9. The argument of Kh. Shahad Ahmad that rule 10(2) of Order I of the Code of Civil Procedure is not applicable to proceedings under writ jurisdiction runs counter to the principle settled by the Supreme Court of Pakistan and this Court that sub-rule (2) mentioned above is applicable to proceedings under the writ jurisdiction. It was held in Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others PLD 1970 SC 1), that proceedings before the High Court in Constitutional petitions are governed by the Code of Civil' Procedure. In that case one of the question decided by the Supreme Court of Pakistan related to addition of parties. In Muhammad Sadiq (deceased) represented through Legal Representatives v. Muhammad Rafiq etc. (1985 SCM R 376). Supreme Court of Pakistan reiterated the principle that proceedings in writ petitions were governed by Civil Procedure Code. This case also dealt with a dispute about addition of parties. This view has been all along followed by this Court.
10. It is specifically provided in rule 42, reproduced above, that the provision of Civil Procedure Code shall, as far as practicable, apply to proceedings in writ petitions except a habeas-corpus writ. The arguments advanced by Kh. Shahad Ahmad that the Code would not apply to the matter of addition of parties can have weight if. rule 37 overrides rule 42. We do not see any conflict between rule 37 and rule 42 so as to lead to the question which of the two provisions would override the other.
11. In our view the two provisions are distinctly different. Under Rule 10(2) the Court has the power to add a necessary or proper party and the matter has to be decided in light of the conditions laid down in the said sub-rule. On the other hand it is clear from the phraseology of rule 37 that it has the following features which distinguish this rule from Rule 10(2) of Order 1 of the Civil Procedure Code:--
(i) A person can only be allowed to oppose a writ petition, not to support it;
(ii) A person is granted audience without making him a party and the time which is otherwise consumed in amending the petition, serving a notice, filing of written statement etc. is avoided;
(iii) A person referred to in rule 37 does not become a party, he only assists the Court and cannot get any relief for himself.
12. Therefore, we are of the view that power of adding a new party in a writ petition is available with reference to rule 10(2), but if a person does not fulfil the conditions laid down under rule 10(2) he still can be heard to oppose the acceptance of a writ petition with reference to rule 37 of the High Court Procedure Rules.
13. This brings us to the question whether respondents Nos. 1 to 4 did fulfil the conditions laid down in Order I rule 10(2) of the Civil Procedure Code. The key to this question is the application itself which was moved by the said respondents for being impleaded as respondents. The application consists of 5 paragraphs. The summary of first four paragraphs is that Muhammad Iqbal got himself appointed in the Government Printing Press through political pressure without recommendations of the selection authority. Due to this appointment the service rights of those working in the Government Printing Press for more than 25 years were adversely affected. The authorities are competent to undo this injustice but Muhammad lqbal has been able to secure a stay order from the High Court. The applicants are senior most employees in the Government Printing Press and are entitrled to be promoted in the higher grades. The fifth paragraph of the application is as follows:-- "That the matter squarely is one relating to terms and conditions of service in which matter a writ petition is not maintainable. The interests of the applicants have badly suffered."
14. Then follows the prayer clause which contains the request that they may be added as respondents in the writ petition.
15. In the application it is not even claimed that respondents Nos. 1 to 4 who moved application were necessary or proper parties. The application also does not disclose any ground on which we may reach the conclusion that they are proper, if not necessary, parties to the writ petition. Their only grievance seems to be that they wanted to persuade the High Court that a writ petition was not maintainable as it related to terms and conditions of service. This contents of the application do not make out a case for being added as respondents in the writ petition. It is, therefore, our view that the High Court fell in error in accepting the application under reference. The order is, therefore, vacated.
16. However, the contents of the application, reproduced above, do make out a case that they are proper persons within the meaning of rule 37 of the High Court Procedure Rules, to be heard by the High Court in support of their contention that the writ petition filed by the appellant is not maintainable. Therefore, we order accordingly.
17. The appeal is disposed of in the terms indicated above.