MUHAMMAD YUNUS SURAKHVI, J.--- This appeal, by way of leave of the Court, has been directed against the judgment of the High Court passed, on 28-6-2000 whereby accepting the writ petition filed by Munawar Hussain, respondent No,1, the writ of prohibition was issued to the concerned respondents not to recall the order, dated 2-9-1998 in any manner whatsoever so as to affect the appointment of respondent No, 1 .
2. The precise facts giving rise to the present appeal are that Munawar Hussain respondent No,1 filed a writ petition in the High Court alleging therein that he was inducted in the service of construction Wing of the Education Department of Azad Jammu and Kashmir as Overseer in B-11 on 18-4-1989. Subsequently, he was promoted as Assistant Engineer in B-16 against the departmental promotion quota on 3-4-1997; he was again promoted as Sub-Divisional Officer in B-17. According to the respondent his appointment as Overseer and subsequent promotions as Assistant Engineer and Sub-Divisional Officer were duly made after advertising the post and on the recommendations of the concerned Selection Board. Saghir Ahmad Mughal, appellant herein, was directly appointed against the post of Sub-Divisional Officer in his place vide orders, dated 4-1-1997 and 4-7-1998, despite the fact that he was a diploma holder in Engineering and according to the Engineering Council Act, 1997 adapted by the Azad Jammu and KashmiGovernment diploma holder cannot be directly appointed as Sub-Divisional Officer. Respondent No,1 filed a writ petition against the appointment of the appellant herein in his place as Sub-Divisional Officer. However, the Government withdrew the notifications dated 4-1-1997 and 4-7-1998 wherein the Government took the stand that appointment of Saghir Ahmad Mughal, appellant herein, was violative of relevant rules because he was not a degree holder in Engineering. The notification, dated 2-9-1998 was issued after due inquiry held by Secretary Services and General Administration Department.
However, according to the respondent subsequent to the notification, dated 2-9-1998 whereby services of the appellant herein were terminated, the matter was reopened and a summary was submitted to the Government by the Secretary, Education, for cancellation of the said notification, inter alia, on the ground that previously the proceedings of issuance of notification, dated 2-9-1998 were not initiated by the Education Department and the department of Services and General Administration could not suo motu probe into the appointment of respondent No,1 herein.
Consequently, it was prayed in the writ petition by respondent No,1 that the order, dated 2-9-1998 may not be revoked. The Government was not legally competent to reopen the matter and annul the notification- dated 2-9-1998 and restore the services of Saghir Ahmad Mughal. The writ petition filed by respondent No,1 as stated earlier has been allowed by the High Court, inter alia, on the ground that Intelligence Agencies, Anti-Corruption Department and some influential persons have been after ousting the respondent from the service despite the fact that his appointment was according to the relevant rules and was made after advertising the post and his subsequent promotion was also made on the recommendations of relevant Selection Board. It has also been observed by the High Court that Saghir Ahmad Mughal appellant herein being not a Graduate in Engineering was not eligible for the direct appointment as Sub-Divisional Officer. However, the learned Judge in the High Court has observed that the observations made by him regarding the eligibility of the appellant herein would not adversely affect him if an occasion arises to appoint him against some other vacancy than the one occupied by the respondent herein.
3. Mr. M. Tabassum Aftab Alvi, the learned counsel for the appellant, vehemently argued that judgment of the High Court was not sustainable for the simple reason that appointment of Munawar Hussain respondent in B-11 as well as his promotions to B-16 and B-17 were illegal because he was not a diploma-holder in Civil Engineering but had a diploma in Chemical Engineering; he misrepresented the facts and obtained his initial appointment as Overseer by committing forgery and practising fraud on the concerned authorities. The learned counsel for the appellant also contended that order, dated 2-9-1998 was issued by the Services and General Administration Department while post of Assistant Engineer in question related to the Education Department. The order, dated 2-9-1998, thus, according to the learned counsel for the appellant was ex facie illegal and thus, the competent authority was vested with the jurisdiction to revoke the same. The learned counsel also pressed into service the submission that the writ petition was not competent to retain the ill-gotten gains, especially so when the respondent was not eligible for the post in view of his qualification. It was also contended by the learned counsel for the appellant that the learned Judge in the High Court has given finding and made observations which travelled beyond the pleadings of the parties. In this regard he referred to various paragraphs of impugned judgment that the High Court had gone beyond the scope of the writ petition and committed grave error resulting into miscarriage of justice. It was further contended by the learned counsel for the. Appellant that the matter pertaining to the terms and conditions of service of Munawar Hussain respondent, therefore, the writ petition was not competent and only Service Tribunal had the jurisdiction in the matter.
4. Mr. Ghulam Mustafa Mughal, the learned counsel for respondent No,1 controverting the arguments raised by the learned counsel for the appellant vehemently urged that appointment of respondent No,1 as Overseer and his subsequent promotions were made according to law. He submitted that appointment of respondent as Overseer was made after advertising the post and in view of the merit list. He referred to a copy of a daily "Nawa-iWaqt", dated 22-12-1988 which contains the relevant advertisement and is marked as Annexure "RB". The learned counsel also referred to merit list Annexure "RC". The learned counsel also submitted that respondent was promoted to B-16 and B-17 on the recommendations of Selection Board as is clear from Annexures "RE" and "RF" to the caveat. The learned counsel for respondent No,1 strenuously argued that in the writ petition filed by respondent No,1 his prayer was that official respondents be restrained from revoking the order, dated 2-9-1998 to which the official respondents filed their comments and expressed their intention not to revoke the order, dated 2-9-1998 but despite that the respondent insisted to continue with the writ petition and made a prayer before the Court during his arguments that to avoid future mischief by Saghir Ahmad Mughal appellant the necessary direction might be issued. The learned counsel contended that even the learned Judge despite the positive assurance given by the Government in its written statement that it had no intention to revoke the order, dated 2-9-1998 issued the writ of prohibition which was unwarranted and uncalled for. Similarly the High Court travelled beyond its jurisdiction to observe that appellant was not eligible to be appointed as Sub-Divisional Officer. The learned counsel further contended that an illegal act proposed to be taken against the respondent could have been stopped by filing a writ of prohibition. He in support of his contentions relied upon Mahmood-ur-Rehman v. Atta Ullah Atta and 3 others PLD 1998 SC (AJ&K)
1. And Azad Jammu and Kashmir University and another v.
Muhammad Malik and others 1998 CLC 783.
5. Kh. Attaullah, the learned counsel for the Azad Government .Contended that the Government still sticks to its previous stand that it was not going to withdraw the notification, dated 2-9-1998. The learned Additional Advocate-General contended that in view of the admission made by the Government the High Court was not competent to issue the writ of prohibition. Similarly the High Court also travelled beyond its jurisdiction by observing that forgery or fraud was committed by the appellant and his supporters in the degree produced by the respondent.
6. After hearing the respective contentions of the learned counsel for the parties and perusing the relevant record, it may be stated that vide notification. Dated 13-3-1990 appellant Saghir Ahmed Mughal was appointed as Assistant Engineer in Grade B-17 on ad hoc basis which is attached with the paper book at page 77 as Annexure "RG". Vide notification, dated 4-1-1997 he was appointed as Assistant Engineer B-17 in the Education Department on the basis of contract of five years and the appointment was purely temporary in nature. It was stipulated in notification, dated 4-1-1997 that his services could be terminated on one month's prior notice or one month's pay. From 1990 to 4-1- 1997 Saghir Ahmed Mughal remained in service on temporary basis. On 4-7-1998 vide Annexure "F" he was appointed as Assistant Engine& in Education Department at Muzaffarabad but vide Notification, dated 2-9-1998 his services were terminated as being violative of the provisions of Engineering Council Act, 1976. On the basis of Notification dated 2-9-1998 the Notification, dated 4- 7-1998 was set aside. Munawar Hussain, respondent No,1 herein, filed a writ petition in the High Court wherein he averred'in para. No,5 as follows:-- "That the Government is again going to violate the Pakistan Engineering Council Act as adapted in Azad Jammu and Kashmir by cancelling the Notification, dated 2-9-1998. In this connection, a summary has been sent to the Government by Secretary, Education for revocation of Notification dated 2-9-1998. Copy of the summary is attached as Annexure ' Similarly in the prayer clause of para. No,10 it was averred as under:- "It is, therefore, prayed that a ,writ of prohibition may kindly be issued by which the respondents may be restrained from cancelling the order, dated 2-9-1998."
' In the writ petition it was also averred that prior to the present writ petition the department tried to appoint appellant upon which the Engineering Council filed a writ petition in the High Court wherein it was averred that no Overseer could be appointed directly as S.D.O. As per Pakistan Engineering Council Act, 1976 as adapted in Azad Jammu and Kashmir and the rules made thereunder. The Government filed comments upon the said writ petition in which it undertook that no appointment in derogation to Pakistan Engineering Council Act and rules shall be made. Consequently, the writ of Engineering Council was disposed of on 9-10-1998.
7. The High Court vide the impugned judgment in para. No,18 has held as follows:-- "As upshot of the above discussion, the petition is accepted and a writ of prohibition is hereby issued in the manner that appointment order of the petitioner shall not be revoked nor the Government order, dated September 2, 1998, be recalled, in any manner, whatsoever."
' Whereas the fact of the matter is that the Notification, dated 2-9-1998 was never challenged by the appellant by way of writ petition or otherwise before any appropriate forum. The mere fact that a summary was processed by the Secretary Education and apprehending that respondent might be adversely affected the writ of prohibition should not have been issued by the High Court especially when the stand of the Government in their written statement is manifestly clear to the effect that the said summary was withdrawn by the Secretary and it was also stated in the written statement that Notification, dated 2-9-1998 shall not be cancelled as the same has been issued in accordance with law. There is a famous Persian saying:- {{URDU TEXT }} ' Thus, it was preposterous on the part of respondent to seek a writ of mandamus against Government and its functionaries despite their assurance given in the written statement that Notification dated 2-9-1998 shall not be cancelled and the summary processed by Secretary, Education was withdrawn. Section 44, subsection (2) of the Azad Jammu and Kashmir Interim Constitution Act, 1974 provides as follows:-- "(2) Subject to this Act, the High Court may if it is satisfied that no other adequate remedy is provided by law--
(a) on the application of any aggrieved party, make an order--
(i) directing a person performing functions in connection with the affairs of Azad Jammu :and Kashmir or local authority to refrain from doing that which he is not permitted by law to do, or to do that which he is required by law to do; or
(ii) .................................................
(b)
(c)
' Thus, it is evident from the bare reading of the above provision of the Constitution that a writ could only have been issued on the application of an aggrieved person directing a person or the local authority to refrain from doing an act which is not permitted by law to do. When the official respondents categorically stated in their written statement that they did not want to cancel the notification, dated 2-9-1998 nor they wanted to act upon the summary of the Secretary, Education, the issuance of writ of mandamus on the part of High Court was a premature exercise.
8. The authorities cited by Mr. Ghulam Mustafa Mughal, the learned counsel for the respondents, have no bearing on the facts of the instant case. In a case reported as Mahmood-ur-Rehman v.
Atta Ullah Atta and 3 others PLD 1998 SC (AJ&K) 1 it was held that it is well-settled that a stranger to a suit or proceeding can file an appeal but it is equally well-settled that right to appeal accrues only to that person who is adversely affected by an order passed in such suit or proceeding.
Similarly in a case reported as Azad Jammu and Kashmir University and another v. Muhammad Malik and others 1998 CLC 783 it was observed that a writ of prohibition available under sub-clause
(i) of clause (a) of section 44(2)(a)(i) of the Azad Jammu and Kashmir Interim Constitution Act lies before completion of an illegal act. Apart from that if a letter or notice is issued without lawful authority it can be termed as "act done" or "proceedings taken" within the meaning of sub-clause
(iii) of clause (a) and a declaration that it is of no legal effect can be given.
9. In the instant case the Government in its written statement expressed its intention clearly, that it did not ,want to cancel the order, dated 2-9-1998 and it had also withdrawn the summary of Secretary, Education, therefore, in view of the circumstances of the case the writ petition was not competent.
10. The contention raised by Mr. M. Tabassum Aftab Alvi, the learned counsel for the appellant, that the matter in issue relates to terms and conditions of service of respondent No,4 as such the same was within the jurisdiction of Service Tribunal and not within the jurisdictional competence of the High Court also merits no consideration as this point was not argued before the High Court nor does it find mention in the impugned judgment of the High Court. Although the plea was raised in the written statement but the same was not argued before the High Court. If the point had been argued before the High Court and not resolved, it was enjoined upon the appellant to file an affidavit in support of his petition for leave to appeal, but the same has not been done. Therefore, the contention raised by the learned counsel for the appellant is hereby repelled.
11. So far as the contention of Mr. Ghulam Mustafa Mughal, the learned counsel for respondents, is concerned that even if an illegal action is not taken, the Government and its functionaries could be stopped by issuing a writ of mandamus to refrain from doing an act, is also devoid of any legal force because the Government has undertaken not to cancel the order, dated 2-9-1998 and if in future some illegal action is taken by the Government and its functionaries to cancel the order, dated 2-9-1998, the respondent will be free to challenge the same and get the illegal act annulled but no writ could be issued in anticipation of an apprehended illegal act.
12. It may also be pointed out that order, dated 2-9-1998 so far was not challenged by appellant Saghir Ahmed Mughal and he is out of service even on that score the writ petition filed by respondent was premature. The question of forgery and fraud also could not have been gone into by the High Court in exercise of writ jurisdiction. By now it stands settled that question of forgery and fraud needs detailed inquiry and being a question of fact could not have been resolved by the High Court in exercise of writ jurisdiction. Thus, the findings recorded by the High Court regarding fraud and forgery are uncalled for and unwarranted which are hereby quashed..
13. In the light of what has been stated above, we accept the appeal and set aside the impugned judgment passed by the High Court and order the dismissal of writ petition filed by respondent No,1 in the High Court as having become redundant. However, the acceptance of appeal will have no bearing on the service of respondent as the appellant did not challenge the Notification, dated 2- 9-1998 nor the order of appointment and further promotions of respondent No,
1. In the circumstances of the case we pass no order as to costs.