NASEEB AZAD Versus CHAIRMAN EHTESAB BUREAU OF THE STATE OF AZAD JAMMU AND KASHMIR

GHULAM MUSTAFA MUGHAL, J.---- The titled appeal by leave of the Court has been filed against the judgment dated 14.04.2017, passed by the Azad Jammu Kashmir and High Court in Writ Petition No.15 of 2017.

2. The facts forming the background of the captioned appeal are that Naseeb Azad, petitioner, herein, filed a writ petition before the Azad Jammu and Kashmir High Court alleging therein that Yasir Arafat, respondent No.5, herein was appointed as Private Secretary B-17 to Chairman Ehtesab Bureau vide notification dated 20.06.2013. It was prayed that as respondent No.5 is lacking the required qualification for appointment against the post of PS to Chairman Ehtesab Bureau B-17, as mentioned in the rules, therefore, his office may be declared as vacant and the official-respondents may be directed to fill in the post in accordance with the rules. After necessary proceedings, the learned High Court has dismissed the writ petition in limine through the impugned judgment dated 14.04.2017, on two grounds; firstly on the ground that the petitioner has sought quashment of the appointment of respondent No.5 by filing writ of quo warranto well as certiorari at the same time. A both kinds of writ petitions cannot be filed at the same time, therefore, the petitioner does not come within the ambit of an aggrieved person and; Secondly, on the ground that the petitioner has violated rule 32(2) of the High Court Procedure Rules because he has not appended the certified copies of the documents.

3. Sardar Ejaz Khan, the learned Advocate appearing for the appellant argued that the appointment order of respondent No.5, herein, was an admitted document and the writ petition could not be thrown out on the ground that the attested copy was not available. In this regard, the learned Advocate placed reliance on Ahmed Nawaz Tanoli's case [2016 SCR 961]. The learned Advocate further argued that as the notification of appointment was an admitted document, therefore, the question raised regarding qualification of respondent No.5 was required to be resolved admission of the writ petition. He added that respondent No.5 was not in the possession of one year Post Graduate Diploma in Computer Sciences which is sine qua non for appointment against the post of PS B-17.

4. Sardar Amjid Aslam, the learned Advocate appearing for the other side has defended the impugned judgment and submitted that the learned High Court has given sound reasons for dismissing the writ petition in limine.

5. We have heard the learned Advocates for the parties and gone through the record of the case. A perusal of the departmental rules reveals that for appointment against the post of PS B-17, 2nd Class Bachelor's Degree from a recognized University along one year Post Graduate Diploma in Computer Sciences is required. The question of lacking qualification has not been considered by the learned High Court. Moreover, on the ground of violation of rules, in this case, the petition could not have been dismissed as per the latest view taken by this Court in Ahmed Nawaz Tanoli's case referred to hereinabove. The points involved in the writ petition could only be resolved after admitting the same for regular hearing. The dismissal of the writ petition in limine on technical grounds without taking into consideration the legal questions involved therein has never been approved by the Courts. In the case titled Mohallah Ejahar Ali v. Government of East Pakistan and others (PLD 1970 Supreme Court 173), at pages 175 and 176 of the report, the Apex Court of Pakistan while dealing with the identical proposition has observed as under:--

"To deal with the second contention first, there is no doubt that the High Court's order which is unfortunately perfunctory gives the impression of a hasty off-hand decision which, although found to be correct in its result, is most deficient in its content. If a summary order of rejection can be made in such terms, there is no reason why a similar order of acceptance saying 'there is no considerable in the substance in the petition which is accepted' should not be equally blessed. This will reduce the whole judicial process to authoritarian decrees without the need for logic and reasoning which have always been the traditional pillars of judicial pronouncements investing them with their primary excellence of propriety and judicial balance. Litigants who bring their disputes to the law Courts with the incidental hardships and expenses involved do expect a patient and a judicious treatment of their cases and their determination by proper orders. A judicial order must be a speaking order manifesting by itself that the Court has applied its mind to the resolution of the issues involved for their proper adjudication. The ultimate result may be reached by a laborious effort, but if the final order does not bear an imprint of that effort and on the contrary discloses arbitrariness of thought and action, the feeling with the painful results, that justice has neither been done nor seem to have been done is inescapable."

In view of the above, while accepting this appeal, the impugned order of the High Court dated 14.04.2017 is hereby set aside. The writ petition is admitted for regular hearing and the case is remanded to the High Court for decision on merits.

JK/28/SC(AJ&K) Case remande