1993 PLP 2234 (CLC)

Sardar Rafique M. Khan for Petitioner. Ghulam Mustafa Mughal for Respondent No.2. The authority of respondent No.2 to hold the office of Deputy Inspector‑General of Police is called is question through this writ petition.

2. The brief facts of the case are that respondent No.2 who was serving in the Police Department of the Azad Government of the State of Jammu and Kashmir as D.I: G. of Police, reached the age of superannuation on 14‑9‑1992. Before attaining the age of superannuation; an order was issued by‑the Government on 3‑9‑1992, whereby respondent No.2 was appointed on contract basis for three years with effect from the date of his retirement. This order is called in question through this writ petition on the ground that the appointment of the respondent is not regulated by a provision of law. It's also averred in para. 6 (d) of the petition that "mala fide action of the respondent No.l is to allow the respondent No.2 to usurp the right of other officers of the Police Force of AJ&K without any lawful authority".

3. Before admitting the writ petition for regular hearing, a notice was served upon respondent No.l to show cause as to why the writ petition may not be admitted for regular hearing. Respondent No.2 also filed a caveat through his Advocate.

4. The learned counsel for the petitioner arguing his case stated that mode of appointment on contract is alien as far as the Civil Servants Act, 1976 and AJ&K Civil Servants (Appointments and Conditions of Service) Rules, 1977 are concerned, as according to the learned counsel, these are the basic laws which regulate the appointments in the Civil Service. It's also argued that the appointment is mala fide and by allowing respondent No.2 to usurp the post of D.I: G. it is to deprive the other officers of the Police of their right to be promoted and to hold that post. The counsel for respondent No.2 has objected to the admission of the writ petition on the ground that petitioner is not an aggrieved person and that petitioner was suspended from service and an inquiry was ordered against him by the respondent No.2 on different allegations. The petitioner, according to the learned counsel is, therefore, not entitled to invoke the jurisdiction of the Court as having not come to the Court with clean hands. The learned counsel for the respondent has placed on record a copy of an order of this Court dated 6‑4‑1993, wherein the respondent No.2 is shown impleaded as a respondent by the petitioner in the writ petition.

5. After considering the arguments, I'm of the view that without going into the merits or the legal grounds taken against the appointment and holding of the post of D.I: G. by the respondent, the petition does not favour consideration of the Court for the following two reasons: (1) That the petitioner is a Prosecuting Inspector in the Police Department who has no present right to claim or hold the office of the D.I: G., at the same time he is not aspirant to the office which he intends to vacate, and he cannot be, for the reason that he has still to cross a pair of ladders to reach to the position of respondent No.2. (2) Though the appointment of a public office holder can be challenged by any member of the public in a writ of quo warranto, but in that case credentials of‑the relator must be above board. The petitioner in the instant case was suspended from the service by the respondent No.2, an inquiry was ordered to be held against him and he had earlier filed a writ petition in this Court in which the respondent No.2 was arrayed as a party in the case.

6. For the above reasons, the petitioner does not qualify the test of being a bona fide relator to challenge the authority of the respondent No.2 to bold the office. I am fortified in holding the above view by PLD 1993 SC (A J & K) 12.

7. In view of above, without commenting upon the legality of the respondent's appointment, the instant petition is dismissed in limine. AA./11/H.CA. Petition dismissed.