' KHAWAJA MUHAMMAD SAEED, J---This appeal, with leave of the Court, is directed against the judgment of the High Court dated 9-5-2002, whereby the writ petition filed by contesting respondent was accepted and the appointment order of appellant as Niab Qasid in Government Middle School Darra Batangi was declared to have been made without lawful authority and a direction was issued to the official respondents to make fresh appointment of an eligible candidate against the aforesaid post.
2. Relevant facts, briefly stated, are that a post of Naib Qasid in Middle School Darra Batangi fell vacant on account of retirement of one Muhammad Yunus who was serving in the said School. An advertisement was published in the Daily `Jang' and `Nawa-e-Wags' dated 21-10-2000. The desirous candidates were invited by the District Education Officer (Male) Elementary Muzaffarabad to file applications before him to 25-10-2000. It will be pertinent to mention here that the applications were invited from local candidates and for the purpose even a notice was affixed on the Notice Board of the office of District Education Officer as well as on the Notice Board of Civil Courts Muzaffarabad on 20-10-2000. Four candidates applied for this job. The Selection Committee conducted the test and interview and prepared a merit list whereby the present appellant was placed at serial No,1, the contesting respondent at serial No,2, Ali Hassan and Khurshid, the other contestants were entered at serial Nos.3 and 4 respectively. Khurshid, who in the drawn merit list of Selection Committee was shown at serial No,4, filed a writ petition in the High Court on 29-9-2000 which was ultimately decided by the learned Chief Justice through his order dated 26-2- 2001,wereby the writ petition was dismissed and the merit prepared by the Selection Committee was maintained. The order being relevant is reproduced below:- "Copy of the merit list is placed on record wherein the petitioner is shown at serial No,4 and it is stated in the letter appended with the merit list that test was held for the post wherein the petitioner was also interviewed who disclosed in the interview that he has passed four classes but has not placed on record any certificate to that effect and as against him three candidates have appeared in the test are with middle and matriculation. One Gulzar Ahmed is selected who is at serial No,1 of the merit list-.
' In view of the above grievance of the petitioner having been redressed and the appointment against the post having been made on merit, the petition does not need any further action which is hereby dismissed." 'Underlining is ours.'
' The respondent No,1 on 2-10-2001 filed a writ petition in the High Court through which he challenged the appointment order of contesting respondent dated 27-2-2001 on various grounds including the competence of one of the Members of the Selection Committee that he was suspended during the period he associated himself in the proceedings held for determining the merit of the candidates.
3. Mr. Mujahid Hussain Naqvi, the learned counsel for the appellant, argued that the writ petition was filed by contesting respondent after the lapse of more than 8 months, therefore, it was suffering from lathes and liable to be dismissed summarily on this ground. He further argued that previously the learned Chief Justice of the High Court had maintained the merit determined by the Selection Committee whereby the appellant was shown at serial No,1, therefore, there was no justification for any other Judge of the same Court to set aside that finding. The new writ petition was, therefore, hit by the principle of res judicata. He also argued that the contesting respondent kept mum and slept over the matter deliberately for a period of 215 days before availing the writ jurisdiction of the High Court. By his conduct he had accepted the appointment of the appellant as correct, therefore, there was no justification for the High Court to reopen the matter which had become past and closed transaction.
4. On the other hand Mr. Abdul Rashid Abbasi, the learned counsel for contesting respondent, argued that the Selection Committee was not lawfully constituted. There were three members of the Selection Committee. Out of them one was absent on the date when the interview was conducted by the Members of Selection Committee. According to him the appellant was serving as private servant with -Khawaja Sarfraz, the other member of the Selection Committee, who was suspended during that period, as such, the whole proceedings of the Selection Committee were against the rules and any merit determined by such Committee is liable to be ignored.
5. We have considered the respective arguments of the learned counsel for the parties and gone through the record of the case. Previously a writ petition was filed by one Khurshid in the High Court on 29-9-2000 against the Azad Government through Secretary Education, Director Education
(Male) Elementary, District Education Officer (Male) Elementary and Muhammad Sabir resident of Darra Batangi, Muzaffarabad. One Muhammad Yousaf the representative of Education Department appeared in the Court. The present appellant was not arrayed in the line of respondents. It was brought in the notice of the learned Chief Justice that appointment of appellant has been made on the basis of merit determined by the Selection Committee, therefore, it was ordered that "the appointment against the post having been made on merit, the petition does not need any further action which is hereby dismissed", whereas no doubt the appointment order which is on the file is dated 27-2-2001. During these five months when the writ petition filed by Khurshid remained pending before the learned Chief Justice of the High Court no other person approached the High Court for the redressal of his grievance. The present writ petition was filed by the contesting respondent, herein, on 2-10-2001, after the lapse of 215 days as rightly calculated by Mr. Mujahid Hussain Naqvi, the learned counsel for the appellant; therefore, there was no justification to condone this delay. The contesting respondent had appeared in the test and interview.
' If he was not satisfied by the conduct of the Selection Committee, he should have filed a writ petition in the High Court well in time against the merit drawn by the said Selection Committee. We have reproduced in the earlier part of this judgment, the order recorded by the learned Chief Justice of High Court dated 26-2-2001, wherein the merit prepared by the Selection Committee has been maintained. In recording fresh finding on the writ petition filed by contesting respondent, the learned Judge in the High Court has in fact impliedly reviewed the earlier order of learned Chief Justice which is not legally justified.
6. In view of these facts, there was no justification to reopen the whole process. If the respondent had any grievance he should have filed an appeal before this Court against the order of learned Chief Justice. The remedy availed by him by filing a fresh writ petition is against the recognized practice, therefore, the judgment obtained by him in his favor cannot be maintained.
' In view of the above, we accept the appeal with costs and set aside the order passed by the High Court dated 9-5-2002.