2022 PLP (C (PLC(CS))

CH. MUHAMMAD IBRAHIM ZIA, C.J.

The captioned petition for leave to appeal has been filed against the judgment of the High Court dated 12.09.2019, whereby the writ petition filed by the petitioner, herein, has been dismissed in limine.

2. The brief facts of the case are that the petitioner filed a writ petition before the High Court claiming therein that he was appointed as Junior Clerk BS-5 vide order dated 02.02.1993 and later on promoted as Inspector Encroachment vide order dated 02.11.1995. He was assigned the charge of post of Officer Encroachment, BS-16 which was vacant as its incumbent (Amir Khawaja) was on leave. Later on, due to cancellation of appointment order of Amir Khawaja, the post fell vacant. The respondents temporarily appointed private respondent vide order dated 09.11.2018. It was Further alleged that the post in question could only be filled through initial recruitment but the same was advertised through advertisement dated 02.04.2019. When this eventuality was brought into the knowledge of the authority in the year 2016, a proposal was initiated for amendment in the rules. According to the said proposal, the post in question was to be filled 50% by promotion on the basis of seniority-cum-fitness and 50% by initial recruitment. It was further contended that the official respondents appointed private respondent against the post in question on temporary basis and advertised the post in question for permanent induction, which is against the rights of the petitioner. It was averred that the rules for promotion of the petitioner have been proposed hence, the direction for implementation of the same may be issued. The writ petition was contested by the respondents by filing comments, wherein, it was stated that the post in question has been advertised and written test has also been conducted. It was further stated that the petitioner does not possess the required qualification, hence, the writ petition is liable to be dismissed. The learned High Court after necessary proceedings has dismissed the writ petition in limine through the impugned judgment dated 12.09.2019, hence, this petition for leave to appeal.

3. Ch. Shoukat Aziz, Advocate, the learned counsel for the petitioner after narration of necessary facts seriously objected to the impugned judgment of the High Court and submitted that the learned High Court has misconceived the facts and law. He referred to the copies of the official communications and proposal of amendment in service rules in relation to Officer Encroachment, BS-16. He further submitted that the fact of proposal is admitted but the learned High Court has wrongly observed that this fact has been denied. It is great injustice that the petitioner is serving since decades but no line of promotion is provided under rules which amounts to deprive him from his legal rights, hence, the judgment is against law. According to the constitutional provisions the authority is bound to make rules consistent with the spirit of the Constitution for the protection of the legal rights of the employees and state subjects. As important legal propositions are involved, hence, grant of leave is justified.

4. Conversely, Mr. Muhammad Yaqoob Khan Mughal, Advocate, the learned counsel for the respondents opposed the petition on the ground that although the arguments advanced at bar are against facts and law but if for the sake of arguments the same are deemed correct even then no effective writ can be issued because the necessary parties i.e., the Government, Services and General Administration Department and the Rules Making Committee have not been arrayed. Without impleading these necessary parties it is futile exercise to grant the leave. The other arguments advanced by the learned counsel for the petitioner are also incorrect. The so-called proposal is neither admitted nor official document. It has been clearly alleged that it is fake and tampered document, hence, this petition is liable to be dismissed.

5. I have heard the learned counsel for the parties and gone through the record made available. The petitioner in his writ petition has prayed as follows:- "It is, therefore, very humbly prayed on behalf of the petitioner that by accepting the instant writ petition the impugned advertisement dated 02.04.2019 may kindly be declared illegal, void, against law and rules and same may kindly be quashed. It is further prayed that the respondents severally and jointly directed to implement/pass the proposed amendment dated 24.02.2016. Any other relief which this Hon'ble Court deems fit may also be granted in favour of petitioner in the interest of justice." The above reproduced prayer clause clearly speaks that the petitioner has prayed for declaring the advertisement issued under the enforced service rules as illegal. Neither he has challenged the vires of the enforced rules nor arrayed the Rules Making Committee as party in the writ petition, therefore, in view of peculiar facts and circumstances of the case the prayed relief in absence of necessary party cannot be granted. In the other part of prayer the petitioner has prayed for issuance of direction for implementation of proposed amendment in the service rules. Irrespective of the question whether the proposal has been officially initiated or not, according to the enforced law the rules are framed by the Services and General Administration Department and have to be enforced after approval of the Government but neither the Government nor the Services and General Administration Department have been arrayed as parties, therefore, without discussion of the points agitated in petition for leave to appeal the petitioner has not arrayed the necessary parties. In this state of affairs, in absence of necessary parties no effective writ can be issued. The learned High Court has rightly passed the impugned judgment which does not call for any interference. Therefore, finding no force this petition for leave to appeal along with application for interim relief is dismissed. ZC/84/SC(AJK) Appeal dismissed.