SARDAR SAID MUHAMMAD KHAN, C.J.--- This appeal has been directed against the order of the High Court, dated 2-12-1997, whereby the writ petition filed by the appellant, herein, was dismissed in limine.
2. The brief facts of the case are that the appellant filed a writ petition in the High Court alleging that Raja Sadaqat Ali, respondent No.3, was appointed as Forest Guard by respondent No. l on the direction of respondent No. 2 who is Forest Minister in Azad Jammu and Kashmir Government. It has been contended that under the relevant provisions of law governing the matter, the appointment by initial recruitment could not be made without advertising the post in pursuance of the relevant rules on the subject; in any case respondent No.3 could not be appointed on the direction of respondent No.2 without complying the relevant rules. A direction was sought against the respondents that the post in question be advertised according to rules and the appointment of respondent No.3 may be declared as null and void. The High Court dismissed the writ petition in limine observing that the same was not competent in view of the fact that the appellant should have resorted first to the departmental Authority and then to the Service Tribunal for the redressal of his grievance instead of invoking the writ jurisdiction of the High Court. The High Court has further observed that according to the comments filed by the relevant department, the post in question was not out of quota reserved for promotion and, as such, the appellant could not be promoted against the said post; besides, he appeared on the seniority list at serial NO. 11 and had no chance of promotion.
3. Mr. Ghulam Mustafa Mughal, Advocate, the learned counsel for the appellant, has argued that assuming for the sake of argument that the post did not fall within the quota reserved for promotion, the fact remains that had the post been advertised, the appellant could have applied for his appointment by initial recruitment, but the post was filled in without complying with the relevant rules. The learned counsel has maintained that the High Court has misconstrued the case of the appellant because his case was not for the issuance of a writ of quo warranto. He has further argued that this was also not the case of the appellant that he should be promoted against the quota reserved for departmental promotion. The learned counsel has drawn our attention to paragraphs 1, 2, and 3 and the relief clause of the memorandum of the writ petition to substantiate his contention that the grievance of the appellant was that had the post in question been advertised as envisaged under rules, the appellant could have applied as a candidate, irrespective of the fact that he was already serving in the Forest Department. The learned counsel has referred to paragraph 3 of the writ petition wherein he has alleged that even otherwise the appointment of respondent No.3 was violative of rules and tantamount to deprive the appellant of the opportunity to compete for the vacancy by taking the tests etc. Which had to be held according to the relevant rules on the subject. The learned counsel has further submitted that the High Court has not adverted to his aspect of the matter and dismissed the writ petition of the appellant in limine on the short ground that the appellant being a civil servant could seek the redressal of his grievance by resorting to -the departmental remedy and, thereafter, by filing an appeal to the Service Tribunal and not otherwise. The learned counsel has contended that the aforesaid observation of the High Court might have been true if the appellant had sought the redressal of his grievance by promoting him against the reserved quota; mere casual assertion regarding the reserved quota in paragraph 2 of the writ petition cannot deprive the appellant of seeking the relief on the other grounds, i.e. That he was entitled to compete for the post as an ordinary candidate in case of filling in the vacancy by initial recruitment. The learned counsel has referred to the cases reported as Miss Azra Hafiz v. Israt Hussain Mughal 1997 PLC (C.S.) 297 and Azad Government v. Israr Hussain Mughal 1996 SCR 278. The learned counsel has further submitted that the appellant was an aggrieved person because had the post been advertised or for that matter filled in according to the rules, he would have presented himself as a candidate for that. He has referred to the cases reported as Muhammad Islam v. Abdul Rashid 1993 SCR 37 and Raja Muhammad Asif v. Chairman, Municipal Committee, Mirpur 1994 SCR 167 in support of the aforesaid contention.
4. In reply, Syed Nazir Hussain Shah Kazmi, Advocate the learned counsel for respondent No.3, has submitted that basically the case of the appellant in the High Court was that he should be promoted against the post in question because the said post was reserved to be filled in by promotion. He has argued that it was not contended before the High Court that the appellant would have applied for the post, if the same would have been filled in through initial recruitment.
He has further submitted that there is no specific averment in the writ petition that the appellant was a candidate not only as a civil servant but as a citizen of the Stale also.
5. Kh. Attaullah, Additional Advocate-General, has submitted that there is averment in the writ petition that the appellant did not seek his appointment by promotion against the seat reserved for departmental quota; the learned counsel has submitted that the comments were filed by the respondents wherein it was mentioned that the departmental quota had already exhausted` and, thus, the contention of the appellant that he should be promoted against the reserved quota was misconceived. It was this reason that the question of filling in the vacancy-- by promotion cropped up in the case.
6. We have given due consideration to the matter. It may be stated at the very outset that the writ petition is so couched that it cannot be regarded as a writ of quo warranto. The perusal of the contents of the writ petition would reveal that it 'was a writ of mandamus seeking direction to the respondents for filing in the vacancy as envisaged by rules, of course, after setting aside the impugned order whereby respondent No.3 was appointed. A close perusal of paragraph 3 of the writ petition would show that it is specifically mentioned in the aforesaid paragraph that even otherwise the appointment of respondent No.3 is violative of the relevant rules and, thus, the impugned order was not sustainable. The High Court has dealt with the matter only in context of filing in the vacancy by promotion without considering the question as to whether the appellant was an "aggrieved person" and, thus, could assail the impugned order on the ground that he was deprived of the opportunity to contest for his appointment by initial recruitment. Obviously, the contention of the learned counsel for the respondents that the appellant was not an aggrieved person, was not attended to and the writ petition was dismissed in limine on a ground which was not available in the case of at the most only by considering one aspect of his grievance. Thus, as the matter has not been dealt with the angle as to whether the appellant is an aggrieved person for assailing the impugned order as a citizen, we set aside the impugned order with the direction that the High Court shall rehear the arguments in the light of the observations made above and decide the matter afresh according to law.