' BASHARAT AHMAD SHAIKH, J.---Sardar Muhammad Abdul Rasheed Khan is holding the post of Additional Chief Secretary (Development) in the Azad Government of Jammu and Kashmir. He was appointed to his present post on 14th January, 1999 up till then he was Secretary to the Government. The appellant, Sardar Riaz Ahmad Khan, is also a Secretary to the Government. It appears that the appointment of Sardar Muhammad Abdul Rasheed Khan, who is impleaded as respondent No,1 in this appeal, as Additional Chief Secretary, which is a higher post although the scale of the post is the same, created dissatisfaction and Sardar Riaz Ahmad Khan filed two writ petitions in the High Court. One is a writ of certiorari/mandamus in which the appellant challenged the appointment of respondent No, I as Additional Chief Secretary on the ground that he (the appellant) had the right to be appointed to the aforesaid higher post.
' This writ petition is presumably still pending in the High Court. The other petition was a petition of quo warranto out of which the present appeal has arisen. This writ petition has been dismissed in limine. The appellant was granted leave to appeal to challenge the judgment of the High Court.
2. In the quo warranto writ it was contended that the appointment of respondent No,1 as Additional Chief Secretary (Development) as well as his earlier appointment as Secretary to the Government and also his very absorption in the Government service were illegal. It was prayed that since respondent No,l's appointment was a continuous wrong it may be declared that he was not legally holding any post in the administrative set up of Azad Jammu and Kashmir. Legal objections were raised in respect of each and every appointment and promotion of respondent No,
1. The learned counsel for the appellant, Mr. Mujahid Hussain Naqvi, has reiterated the arguments before us, which are briefly summarised in the paragraphs to follow.
3. Respondent No,1 was initially appointed as Deputy Director Information in Grade-18 (senior class I) on 8th June, 1974. It was stated in tile order of appointment that the recruitment was being made on the recommendations of the Azad Jammu and Kashmir Public Service Commission. The post of Deputy Director Information against which respondent No,1 was appointed was created by the same order. It was contended by Mr. Mujahid Hussain Naqvi that order of appointment was illegal because.
(i) The Government sent a requisition for the post of Director Information in Grade-18 (750-75- 1500) and the same post was advertised. The Public Service Commission in its session held on 30th March, 1st April, 1974 observed that respondent No,1 was not fit for the post of Director Information Grade-18 but the Commission recommended the respondent No,1 may be appointed as Deputy Director Grade-17 for which post no requisition has been sent nor had it been advertised;
(ii) The Government appointed respondent No,1 as Deputy Director Grade-18 (not 17) by wrongly stating that he had been recommended by the Public Service Commission although he had been specifically found unfit for the advertised post in Grade-18.
(iii) The post of Deputy Director B-18 was not previously in existence nor was it referred to the Public Service Commission;
(iv) Respondent No,1 was also overage but was given illegal relaxation by the President of Azad Jammu and Kashmir.
4. In light of the objections summarized above, it was contended that the very absorption of respondent No,1 was illegal.
5. Respondent No,1 was conditionally promoted as Director Information in Grade-19 on 18th September, 1980. His promotion was ordered without recommendation of the Selection Board.
Respondent No,1 was at that time serving in the Government of Pakistan as a deputationist and was given pro forma promotion subject to approval by the Selection Board. This promotion was also termed as illegal in light of Rule 9 of the Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977 which lays down the mandatory , requirement that: "Appointments by promotion or transfer to posts in various grades shall be made on the recommendations of the appropriate Committee or Board."
' It was contended that no promotion could be legally ordered without previous recommendation of the Selection Board.
6. It was further contended that respondent No,1 was not even subsequently recommended by the Selection Board. Instead of sending the case of respondent No,1 to the Selection Board the Government issued a notification more than seven years later on 27th April, 1988 in which it was stated that by treating it as a "special case" Sardar Muhammad Abdul Rasheed Khan would stand promoted as Director Information B-19 with effect from 18th September, 1980 and if the appointment was inconsistent with any rule the said rules shall stand relaxed. Two objections were raised about this appointment. Firstly mandatory Rule 9 mentioned above did not permit any promotion without recommendations of the Selection Board. The other objection was that for promotion to a post in B-19 minimum length of service, as prescribed in Government Order issued on 23rd April, 1986, was twelve years' service in B-17 while on 18th September, 1980, the date of promotion of respondent No,1, respondent No,1 had only six years' service to his credit even if his service as Deputy Director B-18 may be assumed as valid. Reliance was also placed on Rule 10 of Rules of 1977 mentioned above which lays down that only such person can be considered for promotion by the Selection Board who meets the conditions laid down for promotion.
7. Respondent No,1 was appointed as Secretary to the Government on 15th January, 1992 at that time he was holding the post of Director Industries and Commerce B-19. According to a notification issued on 15th January, 1992 respondent No,1 was transferred and posted as Secretary Industries, Commerce etc., in his own pay and scale. This appointment was challenged on the ground that it was against the scheme of the Civil Servants Act as enunciated by this Court that no civil servant can be appointed to hold a higher post by transfer in his own pay and scale.
8. On 12th May, 1992 respondent No,1, as well as ten other civil servants, were confirmed as Secretaries to the Government on the recommendation of the Selection Board No,1. Moreover, the promotions were made effective from the date on which incumbents started functioning. The objection about this promotion is that it was ordered in violation of Azad Jammu and Kashmir Secretaries Service Rules, 1992. It was a mechanical promotion of all those civil servants who were already holding the posts of Secretary to the Government while under the Secretaries Rules it was mandatory to consider the cases of Heads of Department, Additional Secretaries and Deputy Inspectors-General of Police with requisite qualifications. It was further contended that respondent No,1 was promoted as Secretary from the date when he was transferred and posted as Secretary from a post in B-19 which was, as stated, clearly in illegality.
9. In short the plea of the appellant was firstly that respondent No,1 was not legally inducted in service and secondly he was not legally promoted at any stage in his career and was, therefore, not a validly appointed Secretary to the Government.
10. One of the grounds on which the writ petition was dismissed was that it suffered from laches. Mr. Mujahid Hussain Naqvi, the learned counsel for the appellant, relies on judgment of this Court reported as Azad Government and others v. Sahibzada Ishaque Zafar and others (1994 MLD 2382) in which it was held that a writ of quo warranto could not be dismissed on the ground of laches or because it was filed after expiry of a considerable time.
11. Another ground on which the writ petition has been dismissed is that it was mala fide inasmuch as an order passed in 1974 has been challenged by the appellant to strengthen his other writ petition in which he has challenged the appointment of respondent No,1 as Additional Chief.
Secretary (Development). This ground is met by Mr. Mujahid Hussain Naqvi by placing reliance on a judgment of this Court in Civil Appeal No,93 of 1998 titled Muhammad Yaqub Khan v. Secretary Forests and others (decided on 16-10-1998) in which it has been held by this Court that even an aggrieved person can file a writ of quo warranto.
12. About the basic illegality which was allegedly committed while appointing respondent No,1 as Deputy Director B-18 the learned Judge in the High Court observed as follows:--- "I have already decided a case titled Syed Iftikhar Hussain v. Sardar Muhammad Abdur Rashid Khan and others wherein it is held that the petition has been filed with mala fide intention and also suffers laches. Even on merits I held that the reference was made to P.S.C. For recruitment to the post of Director Information (B-18). The appointment of respondent No,1 having been made in the same grade (B-18) as Deputy Director Information (B-18) irrespective of the nomenclature of the post, is valid. All the persons intending to compete for a post in B-18 in the Information Department were given chance through advertisement; therefore, no one can claim that he was deprived of the right of competition. The respondent No,1 was recommended by the P.S.C. For appointment to the post of Deputy Director and he was appointed as such. Non-availability of a particular post at the relevant time of advertisement does not nullify the appointment to a post which was available when the appointment was actually made."
13. The learned counsel for the appellant vehemently contended that the learned Judge in the High Court overlooked the all-important facts, proved from the record, that the Public Service Commission specifically stated that he was not fit to hold the post of Director Information B-18 and recommended him for a post in B-17. The learned counsel also relies on the case reported as Azad Government of the State of Jammu and Kashmir v. (Haji) Mir Muhammad Naseer (1999 PLC (C.S.)
1173) to contend that a post must exist before it is advertised and it is illegal to make an appointment against a post which was not in existence when applications were invited.
14. We have heard Sardar Rafique Mahmood Khan, the learned counsel for respondent No,1 at some length. He vehemently supported the views expressed by the learned Judge in the High Court by referring to each and every detail. In support of his contentions he relied on section 49 of the Azad Jammu and Kashmir Interim Constitution Act, 1974. In order to appreciate his submission it will be profitable to reproduce the said section: --- "49. The Services.---(1) Subject to this Act, the appointment of persons to and the terms and conditions of service of persons in the service of Azad Jammu and Kashmir may be regulated by law.
(2) Until an Act of the Council in respect of persons in the service of Azad Jammu and Kashmir employed in connection with the affairs of the Council, or an Act of the Assembly in respect of such person employed in connection with the affairs of the Government, makes provision for the matters referred to in subsection (1), all rules and orders in force immediately before the commencement of this Act, shall continue in force and may be, amended from time to time by the Council or, as the case may be, the Government."
' The learned counsel contended that the order of appointment of respondent No,1 as Deputy Director was issued on 8th June, 1974 while the Azad Jammu and Kashmir Interim Constitution Act was enforced subsequently with the result that the protection granted to "orders in force immediately before the commencement" of the Constitution Act was applicable to the appointment order of respondent No,1 and for that reason the appointment order cannot be challenged. In our view, prima facie, the protection given to the orders in force at the time of promulgation of the Constitution Act was only intended to afford continuation and there was no protection so far as validity of that order is concerned. Clearly the purpose of this provision of law was not to lay down that if an order was illegal it would become illegal by virtue of this provision.
15. The learned counsel then placed reliance on section 23 of the Azad Jammu and Kashmir Civil Servants Act, 1976 reads as follows:--- "23(1) The Government, or any person authorized in this behalf may make such rules as appear to him to be necessary or expedient for carrying out the purposes of this Act.
(2) Any rules, regulations, orders or instructions in respect of any terms and conditions of service of civil servants duly made or issued by an authority competent to make them and in force immediately before the commencement of this Act shall, in so far as such rules, regulations, orders or instructions are not inconsistent with the provisions of this Act, and be deemed to be made under this Act."
' The argument based on this provision was also that section 23 reproduced above gave validity to all orders passed prior to the enactment of the said Act. Our observations about the similar argument relating to section 49 of the Constitution Act are fully applicable to the present provision.
This provision also does not give validity to an order which may be owned as illegal.
16. Sardar Rafique Mahmood Khan relied on Dr. Kamal Hussain and 7 others v. Muhammad Sirajul Islam and others (PLD 1969 SC 42) and Syed Manzoor Hussain Gilani v. Sam Mullah, Advocate and 2 others (PLD 1993 SC (AJ&K) 12). It was held in Dr. Kamal Hussain's case by the Supreme Court of Pakistan that the High Court can legitimately test bona fide of a relator in a writ of quo warranto to see if he has come with clean hands. Syed Manzoor Husstin Gilani's case decided by this Court is also to the same effect. In our view the only allegation against the appellant is that he is seeking personal advantage. It .Has been held by this Court in Muhammad Yaqub Khan's case, referred above, that even an aggrieved person can file a petition for quo warranto. In our view if a person has personal interest, his effort does not ipso facto become mala fide.
17. In our view the High Court fell in an error in applying doctrine of lathes to the present case that doctrine is not applicable to a writ of quo warranto, the finding of fact of mala fide recorded by the High Court also does not hold good because if an aggrieved person files a writ petition no valid objection can be taken to it. It is also our view that the High Court failed to notice that respondent No,1 was not found fit for the advertised post in Grade-18 and recommended him for a post in Grade-17, which has not been advertised, but appointed to a post in Grade-18. In our view the points urged in the writ petition needed to be thoroughly examined and it was on the face of it a fit case -in which the writ petition should have been admitted. Thus, the order of dismissal in limine is not sustainable.
18. We, therefore, accept the appeal with costs, set aside the judgment of the High Court and order that the writ petition filed by the petitioner stand admitted. The parties are directed to appear before the Registrar of the High Court at Muzaffarabad on 27th instant to take further orders.
19. Since the writ petition has been dismissed in limine by a learned Judge it is ordered that the case shall not be posted before the same learned Judge.