' MUHAMMAD YUNUS SURAKHVI, J.---These two appeals by way of leave of the Court, are directed against an order passed by the High Court on 12-3-1998, whereby on a writ petition filed by Azhar Hussain Chaudhry, respondent No,4, the orders of the Government exempting the posts of the appellants from conducting test and interview and thus, confirming them from the dates of their appointments were declared null and void and against the relevant law. A writ of quo warranto was also issued against the appellants that they had not been able to show any authority of law under which they claimed to hold their respective offices and they had no right to enjoy those offices. Their offices were, therefore, declared vacant and it was ordered that those posts shall be filled up in accordance with law, by accepting the writ petition of respondent No,4.
2. Against the aforesaid judgment two separate appeals were filed in this Court titled Syed Sadaqat Hussian Shah and others v. Azad Jammu and Kashmir Government and others (Civil Appeal No,64 of 1998) and Shaukat Rafique Khan v. Azhar Hussain Chaudhry (Civil Appeal No,76 of 1998). As in the judgment under appeal both the appellants were enlisted as respondents, therefore, both the appeals are consolidated and are disposed of through a single judgment as the facts and law are common in the both the appeal.
3. The necessary facts, forming the background of the present appeals, are that various posts of Municipal Magistrates/Chief Officers/Secretary Municipal Committee were created in the Department of Local Government of Azad Jammu and Kashmir. The appellants vide orders, dated 4-8-1992, 8-8-1992 and 19-9-1993, were appointed on the posts of Municipal Magistrates/Chief Officers/Secretary Municipal Committee on ad hoc basis. According to the appellants the posts to which they were appointed on ad hoc basis were not regularized under the Civil Servants Act and the Rules framed thereunder. The services of appellants were governed under the Azad Jammu and Kashmir Local Council (Appointment and Condition of Service) Rules, 1990, which were framed by the Government under section 93 read with section 45 of the Local Government Act, 1989, as such the advertisement of the posts for the purpose of ad hoc appointment was not necessary.
Subsequently vide notification, dated 15-9-1993, the Government, in exercise of the powers vested in it under Rule 25 of the aforesaid Rules by relaxing the provision of sub-rule (1), of Rule 5 of the aforesaid Rules, regularized the appointments of the appellants. After the General Elections held in June, 1996, due to change in the formation of Government in order to politically victimise the civil servants of Local Council the Government under the pretext of judgment of this Court titled Sheikh Manzoor Ahmed v. Azad Government and another (1995 PLC (C.S) 59), decided in meeting held on 8-8-1996, that all the civil servants in whose favour orders have been passed under section 22 of the Civil Servants Act, shall be removed from the service.
4. In the meantime respondent No,4, Azhar Hussain Chaudhry, filed a writ petition in the High Court, whereby he challenged the order of appointment of appellants, dated 15-9-1993. The order of relaxation passed in favour of appellants was also challenged and a writ of quo warranto was also prayed for. A learned Judge in the High Court vide his impugned order, dated 12-3-1998, accepted the writ petition and held that the appointments of appellants were unlawful and without any jurisdictional competence. A writ of quo warranto was also issued that the appellants failed to show under what authority of law they were holding the posts, as such the said posts were declared vacant and a direction was issued to fill up the posts in accordance with law. The aforesaid judgment of the High Court is the subject of present appeals.
5. Arguing the case on behalf of appellants Syed Sadaqat Hussain Shah and others, Raja Muhammad Hanif Khan, the learned counsel, raised a preliminary objection that a learned Judge in the High Court in disposing of the writ petition acted illegally as the learned Chief Justice of the High Court did not constitute the Bench in the instant case nor it was directed by the learned Chief Justice that the writ petition filed by respondent may be heard by a single Judge. The learned counsel contended that as visualized under Rule 33 of the High Court Procedure Rules, 1984, an application under section 44 of the Azad Jammu and Kashmir Interim Constitution Act shall be placed for admission before a Division Bench to be constituted by the Chief Justice and after its admission shall ordinarily be heard by a Judge sitting alone unless the Bench admitting the petition directs otherwise. The learned counsel maintained that, however, the Chief Justice has a discretion under the relevant Rules to authorise a single Judge to hear a petition. In the instant case the single Judge having not been authorised by the learned Chief Justice was incompetent to hear the petition as such the impugned order was patently illegal, erroneous and bad in law. The learned counsel strenuously argued that vide order, dated 15-9-1993, the posts were exempted from advertisement but the same order was not challenged and similarly the appointments of appellants were regularised on 15-12-1993, and this order too was not challenged by the respondent. However, these material points escaped the attention of the learned Judge in the High Court. The learned counsel pointed out that the respondent got himself appointed on the post of Municipal Magistrate on ad hoc basis in a similar way as the appointments of appellants were made so the writ petition filed by him was actuated by malice and for his personal interest and gains. The learned counsel contended that the cases reported as Azad Jammu and Kashmir Government v. Muhammad Yunus Tahir (1994 CLC 2339) and Sh. Manzoor Ahmed v. Azad Government and another (1995 PLC (C.S) 59) have no relevancy to the case in hand as service of the appellants was not governed under Civil Servants Act. In the case of appellants the selection authority was the Local Government Board which was competent to regularise the appointments of appellants.
6. Mr. M. Tabassum Aftab Alvi, the learned counsel for the appellants Shaukat Rafique Khan, supported the arguments raised by Raja Muhammad Hanif Khan, the learned counsel for other appellants.
7. Kh. Shahad Ahmed, the learned counsel for the respondents, controverting the arguments raised by the learned counsel for the appellants contended that the Government was not competent to exempt the said posts from general publication. According to the learned counsel under section 5(1) of the Azad Jammu and Kashmir Local Council (Appointment and Conditions of Service) Rules, 1990, the order of exempting in respect of respondents Nos,4 to 11 in the writ petition was illegal and further maintained that under section 5, subsection (1) of the aforesaid Rules the initial recruitment to the posts in Grade-11 and above was to be made on the basis of result of the competitive examination conducted by the Board or the Selection Committee whereas the Government exempted respondents 4 to 11 from the examination.
8. Raja Shiraz Kayani, the learned Advocate-General, appearing on behalf of pro forma respondents Nos,2 to 4, supported the arguments advanced by the learned counsel for respondents. However, he urged that the matter related to the terms and conditions of service as such it could only have been adjudicated upon by the Service Tribunal. According to the learned counsel the jurisdiction of the High Court stood ousted in view of bar provided under subsection (2) of section 47 of the Interim Constitution Act. The learned counsel also maintained that respondent No,4 who filed the writ petition before the = High Court was not aggrieved person to file the constitutional petition. The learned counsel pressed into service the submission that the Government was fully empowered to relax the terms and conditions of service; the order of relaxation was made under rules which could not be challenged in a writ jurisdiction.
9. We have given our due consideration to the arguments advanced by the learned counsel for the parties and perused the relevant record. The appellants were initially appointed on ad hoc basis but were confirmed by the Government while relaxing the conditions of rule 5(1) of the Azad Jammu and Kashmir Local Council (Appointment and Conditions of Service) Rules, 1990, under section 25 of the aforesaid Rules, through Government notification issued on 15-12-1993. Through another notification, dated 15-9-1993, the relevant posts were exempted from publication and advertisement.
10. Respondent Azhar Hussain Chaudhry challenged the validity and legality of the appointments of appellants and also made a prayer for issuance of a writ of quo warranto against the appellants to ask them to explain that under what authority of law they were holding offices and to declare them as vacant. In so far as the objection raised by Raja Shiraz Kayani, the learned counsel for pro forma-respondent, is concerned that the matter relating to terms and conditions of service was not within the jurisdiction of High Court because of the bar provided under subsection (2) of section 47 of the Interim Constitution Act, on careful consideration is found to have no substance.
When Azhar Hussain Chaudhry, respondent No,4, filed the writ petition he was not in service of Azad Jammu and Kashmir either as an ad hoc or a permanent employee. Thus a citizen who is out of service can challenge the appointments of functionaries of Government by filing a writ of quo warranto. It has been settled in a reported case titled Mst. Zubeda Begum v. Azad Government of the State of Jammu and Kashmir through Chief Secretary Muzaffarabad (1998 PLC (C.S) 292) that a person not in the service of Azad Jammu and Kashmir can invoke the writ jurisdiction for the redressal of the grievance arising out of the terms and conditions of service. Therefore; the point does not require any elaborate discussion.
11. So far as the objection of the learned counsel for the appellants that the learned single Judge of the High Court was not competent to hear and dispose of the writ petition as under rule 33 of the High Court procedure Rules the case was not made over to him by the learned Chief Justice, the same is also not tenable for reasons to be recorded hereinafter. After enquiring from our Circuit at Mirpur, we have been able to find out the interim order passed by the High Court from time to time.
Initially this case was made over to Mr. Justice Kh. Muhammad Saeed, J., by the then Chief Justice Mr. Justice Sher Zaman Chaudhry) and Mr. Justice Kh. Muhammad Saeed admitted it for regular hearing on 21-1-1995. Then on various dates the case has been pending before Mr. Justice Kh.
Muhammad Saeed, who, for one or the other reason, could not attend his tour at Mirpur Circuit. On 14-2-1995, a general order was passed by the then Chief Justice (Mr. Justice Sher Zaman Chaudhry) that "all the cases pertaining to Mirpur Circuit shall be heard and disposed of by my learned brother Mr. Justice Ch. Muhammad Taj." During the subsistence of the aforesaid general order the case was placed before Mr. Justice Ch. Muhammad Taj, on ,16-5-1995, and thereafter Mr. Justice Ch. Muhammad Taj proceeded with the case and ultimately decided it on 12-3-1998. So, in our view the case having been made over by the then Chief Justice to Mr. Justice Ch. Muhammad Taj for hearing and disposal, the learned Judge in our view did not violate any of the provisions of High Court Procedure Rules, 1984. Therefore, the objection raised by the learned counsel for the appellants stands repelled.
12. Similarly the other objection that Azhar Hussain Chaudhry was not an aggrieved person within the meaning of section 44 of the Interim Constitution Act is also devoid of any legal force as a writ of quo warranto does not require the petitioner to be an aggrieved person. The substance of the writ petition filed by Azhar Hussain Chaudhry related to a writ of quowarranto. However, a declaration has also been sought in the same writ petition, which is also interlinked and interwoven with the writ of quo warranto. The Government by ignoring the relevant law and rules in the first instance exempted the appellants' posts holding on ad hoc basis from advertising those and through another notification exempted the application of rule 5 sub-rule (1) of Azad Jammu and Kashmir Local Council (Appointment and Conditions of Service) Rules, 1990, for conducting test and interview and thus confirmed them from the dates of their appointments under section 25 of the aforesaid Rules. The appellants in this case have failed to bring anything on record which may support the order of relaxation in writing or otherwise with the consultation of the Board giving reasons for causing undue hardship in the case of any individual. It implies that the Government did not record any reason in writing for being satisfied that the strict application of any rule would cause undue hardship to any individual.
' Therefore, it follows that the order of relaxation made in respect of respondents 4 to 11 in the writ petition and thus, declaring them appointed under rules from the dates of their appointments is unlawful and without any jurisdictional competence particularly when the order for all the appointees mentioned above has been made in bulk. Apart from the other facts, the impugned order is inconsistent with the fundamental rights as well as the Azad Jammu and Kashmir Local Council (Appointment and Conditions of Service) Rules, 1990. The aforesaid appointments made in derogation of the dictum laid down by this Court in the cases reported as Azad Jammu and Kashmir Government and others v. Muhammad Yunus Tahir and others (1994 CLC 2339) and Sh.
Manzoor Ahmed v. Azad Government and another (1995 PLC (C.C.) 59) are violative of law and without any jurisdictional competence. It may also be pointed out that in a writ of quo warranto the question of mere laches hardly matters and is not at all fatal unless it is actuated by malice which is not found in the present case.
' In the light of what has been stated above, we uphold the impugned judgment passed by the High Court and dismiss the appeals with costs.