' BASHARAT AHMAD SHAIKH, J.---Respondent Muhammad Tariq Aziz filed a writ petition in the High Court to challenge the appointment orders of pro forma-respondents Muhammad Mushtaq and Imtiaz Ahmad as Junior Clerk and Sanitary Patrol respectively made by the Director-General Health. The writ petition has been accepted and Director General Health as well as members of the Selection Committee have been ordered to pay Rs,10,000 as costs to the successful writ petition.
Director General Health filed this appeal, by leave of the Court, to challenge that part of the judgement in which Rs,10,000 have been ordered to be paid as costs.
2. Muhammad Tariq Aziz stated in his writ petition that at three different occasions he served in the Health Department against casual vacancies but when subsequently two posts of Sanitary Petrol and Junior Clerk, fell permanently vacant Muhammad Mushtaq and Imtiaz Ahmad were appointed against them without adverting the posts which was a violation of rule 17 of the Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service Rules) 1977 and various judgments of superior Courts. He also averred that one of the appointee was nephew of Administrative Officer in the Directorate General of Health and his appointment was ordered to favour the said officer. He alleged that the appointments were illegal, mala fide and acts of nepotism. Director General Health was impleaded as one of the respondents. The respondents controverted the averments mentioned above and asserted that the appointments had been made according to the rules and on the recommendations of the Selection Committee. They, however, did not say whether the posts had been advertised nor did they deny that one of the appointees was a nephew of the Administrative Officer. The learned Judge in the High Court sent for the relevant file from the Director General's office and found out that the posts in dispute had not been advertised although appointments had been made on the recommendations of the Selection Board. The learned Judge declared that the disputed appointments had been made without lawful authority and Director General Health was directed to advertise the posts and then to make the appointments in accordance with the rules. The findings about illegality of the appointments is based on the following three grounds. Firstly that the posts were not advertised as required by rule 17 of the Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977. Secondly the recommendations of the Selection Committee had no legal value because Selection Committee has to make a choice from amongst the candidates who filed applications in response to the advertisement. The third ground that the appointments had beeh made to do favour to the appointees was not rebutted through any counter-affidavit. The learned Judge also noted that it was misstated in the comments as well as the written statement that the appointments had been made after fulfilling the requirements of the Rules because the basic rule that the post should be advertised had not been complied with. After quashing the appointments the learned Judge passed the following order which has been challenged in this Court,- "In view of circumstances of the case where the misstatement is made, rules have been violated and judgments of Superior Courts are overlooked, the Director General Health and Members of the Selection Committee shall pay Rs,10,000 as costs to the petitioner."
3. In support of the appeal Raja Muhammad Hand Khan, the learned counsel for the appellant, vehemently submitted that the order passed by the learned Judge in the High Court is not covered by section 35 or by section 35-A of the Code of Civil Procedure. He explained that section 35 authorises the Court to impose costs on a party but the costs visualised in that section are actual costs incurred by a party which are determined in light of the rules relating to determination of costs, but the High Court has not ordered that the costs of litigation shall be borne by the respondents in the writ petition but the learned Judge has himself fixed the amount of Rs,10,000.
Such costs can be imposed under section 35-A of the Code but the even that section is not attracted to the present case. Explaining his argument Raja Muhammad Hanif Khan submitted that under section 35-A, in its application to a defendant, compensatory costs can be imposed on that defendant if the defence put up by that party turn out to be false or vexatious to the knowledge of the defendant but in the present case no finding has been given by the High Court that the defence put up by the present appellant was false or vexatious to the knowledge of the appellant.
The learned counsel relied on the case reported as Zaighum Saleem Khan v. Muhammad Saleem Khan and another (1992 SCR 344) and unreported judgment of this Court in Civil Review No,1 of 1992 titled Zaighum Saleem Khan v. Muhammad Salem Khan and another. It was then contended by the learned counsel that in any case the maximum amount of the compensatory costs which can be imposed in Azad Jammu and Kashmir are Rs,1,000 whereas in the order under appeal the amount of costs is Rs,10,000.
4. The learned counsel for the respondents, Ch. Muhammad Ibrahim Zia, controverted the arguments of the learned counsel for the appellant by contending that costs imposed in the order under appeal are justified with reference to the inherent powers of the Court. The learned counsel relied on the case reported as Azad Government and 4 others v. Dr. Syed Abadain Haider and 8 others (2000 PLC (C.S.) 9 in support of his contention.
5. We agree with the learned counsel for the appellant that the order challenged before us cannot be legally justified by sections 35 and 35-A of the Code, but this Court's judgment in, Dr. Syed Abadain Haider's case has clearly laid down the law that if a totally insupportable and frivolous order is passed by a. Respondent special costs can be awarded without reference to sections 35 and 35-A. Facts of the case in Dr. Syed Abadain Haider's case were that Abadin Haider and eight others were selected by the Public Service Commission for the posts of Civil Medical Officer but the Government de-requisitioned six posts out of twenty seven advertised posts of Civil Medical Officers due to which quota of all the regions was reduced. When a writ petition was filed it was observed by the High Court that after the declaration that Abadain Haider and others had been selected, de-requisitioning of six seats and the consequent orders of Director General Health whereby he readjusted the quota of different regions were without lawful authority. Secretary and Director General Health were ordered to pay Rs,5,000 as special costs, to the writ petitioners in addition to the costs of litigation. An appeal brought to this Court by the Azad Government and others failed. This Court followed the judgment of Supreme Court of Pakistan reported as Inayatullah v. Sh. Muhammad Yousaf and 19 others (1997 SCMR 1020) in which it was held that in a writ petition High Court was fully competent in exercise of its inherent powers to grant appropriate compensation. We also followed another judgment reported as Mst. Masoom Bibi v. Deputy Administrator, (R.P.) Sialkot and others (1988 CLC 2317). The conclusion reached by this Court was as follows,-- "From the survey of the case-law it becomes evident that the High Court is not debarred from awarding an exemplary costs to a petitioner who has no cause of action or who comes in a Court by bringing frivolous petitions to harass the other parties to burden them with the unnecessary expenses of litigation. On the same analogy this power is available where filing of a writ petition becomes necessary to challenge a totally insupportable or frivolous order. In this view of the matter, in our view the High Court has committed no illegality in awarding the exemplary costs of Rs,5,000 in addition to the expenses of litigation."
6. In the present case the orders passed by the appellant which were quashed by the High Court were totally insupportable and frivolous. It follows from the above that the High Court acted with jurisdiction in imposing the costs in the order under appeal. Therefore, we find no merit in the appeal and order its dismissal.