1. BASHARAT AHMAD SHAIKH, J.---The High Court has admitted to regular hearing a writ petition filed by respondent Muhammad Hafizullah and has also ordered that appellant, herein, Raja Muhammad Asghar Khan, will not be promoted to BPS-20. Raja Muhammad Asghar Khan has filed petition for leave to appeal to challenge the stay order mentioned above.
2. The writ petition was admitted to regular hearing and a stay order in the following terms was also issued:----- "There is an application for the maintenance of status-quo by contending therein that the respondents want to promote respondent No.5 in BPS.20 which shall drag the parties in further litigation. As the writ petition is admitted for regular hearing, it is, therefore, ordered that till the disposal of this writ -petition, the respondent No.5 shall not be promoted in Grade-20. This order is subject to objection by the respondents."
3. Raja Muhammad Asghar Khan filed a petition for leave to appeal against the stay order which was granted. We have heard arguments on the appeal today.
4. After hearing the learned counsel for the parties we have reached the conclusion that for the reasons stated herein stay order issued by the High Court is not sustainable.
5. While issuing the stay order the High Court violated rule 34 of the High Court Procedure Rules which requires that a notice be issued to the respondents before passing any interim order in a writ petition, but no such notice was given to the appellant before stopping his promotion. The said rule creates an exception in cases of emergent nature by laying down that the requirement of issuing notice to the respondent may be dispensed with but the High Court did not relax the rule before passing the order.
6. The relevant portion of the judgment, which has been reproduced above, shows that the High Court ordered that the appellant shall not be promoted to BPS.20 only because the writ petition had been admitted for regular hearing. We regret to point out that this is not a reason which alone can form the basis of a stay order. It is well-settled that a stay order can be issued if there is a prima facie good case, and principles of balance of convenience and of irreparable loss are in favour of grant of stay order. These matter were not brought into consideration by the High Court.
7. Even on merits we are of the view that a case for stopping the promotion of the appellant as an interim measure was not made out in the case. The writ petition has been filed by the respondent to challenge the promotion of the appellant to a post in BPS.
19. It is also prayed in the writ petition that the appellant may be declared as a temporary employee. If during the pendency of the writ petition the appellant is promoted to B.20 and the writ petition is accepted the promotion of the appellant to B.20 shall come to an end as a consequence of the judgment of the High Court.
8. Therefore, the respondent would not suffer any irreparable loss. Balance of convenience also does not lie in disturbing the functioning of the Logging and Saw Mills Corporation in the matter of promotion, posting etc. Therefore, the appeal is accepted and the stay order issued by the High Court is vacated.