1998 PLP 595 (CLC)

(iv) the learned counsel also argued on the basis of amendment application that after the filing of writ petition, various orders for, the appointment of Sub‑Judges were issued by the Government and this Court. It was explained that by virtue of Azad Jammu and Kashmir Civil Service (Judicial Branch) Rules, 1993, the candidates consumed the quota reserved for the law and Judicial Departments. Therefore, it is only the District Poonch and Bagh for which quota remains intact; (v) the learned counsel explained that petitioner No.2 was appointed in the Law Secretariat and later on transferred as Sub‑Judge against the quota reserved for District Bagh.

5. The learned Advocate‑General appearing for the respondents opposed the contentions raised by the learned counsel for the petitioners in the following manner,.‑‑ (i) That the matter challenged in the writ petition pertains to terms and conditions of service, therefore, the jurisdiction of this Court is ousted an4 it is the Service Tribunal which can only lawfully adjudicate upon; (ii) that the petitioners were appointed on ad hoc basis and are not entitled to file the Constitutional petition which cannot be maintained; (iii) that no quota is left for Districts Poonch and Bagh. The requisition sent by respondent No. l earlier, was not in accordance with law, therefore, the petitioners cannot claim any right, as such are not resided with a right to invoke the Constitutional jurisdiction through writ petition which is liable to be dismissed.

6. I have heard the learned counsel for the parties and also gone through the record appended with the petition. After going through the pleadings of the parties, it reveals that the petitioners were appointed as Sub‑Judges on ad hoc basis. Petitioner No.l was appointed against District Poonch, while No.2 transferred as Sub‑Judge against the quota reserved for District Bagh. They have filed this writ petition claiming the quota for the aforesaid Districts and a requisition to be sent by the Government to respondent No.3 for the purpose. The petitioners have mainly relied their claim on the basis of their ad hoc appointments against the quota for the said Districts and later on inviting the applications by respondent No.3 for the regular appointments, but due to enactment of the Regulartsation Act (later on declared to be ultra vires of the Constitution), the regular appointments could not be made. It was argued that the Government of Azad Jammu and Kashmir, respondent No.l, is estopped from altering the stand of availability of quota for the said Districts. Raja Muhammad Hanif Khan, the learned counsel for the petitioners also laid stress that the Azad Jammu and Kashmir Civil Service (Judicial Branch) Rules, 1993 are not applicable to the petitioners' case as those came into force later on. It was also asserted by the learned counsel that under the dictum finally recorded by the Supreme Court of Azad Jammu and Kashmir in the case titled. 'Javed Iqbal Khawaja and others v. Azad Government and others', on July 26, 1994, the requisition was required to be sent to respondent No.3 for all the posts. The respondents in their written statement as well as the arguments addressed at the bar, seriously opposed the contentions of the petitioners, claiming to have no quota left for the aforesaid two Districts for the appointment of Sub‑Judges, therefore, it was urged that the writ in the circumstances, cannot proceed.

7. It is firstly to be determined as to whether any quota remains to be 1 consumed, for the aforesaid Districts. From the pleadings, particularly the petitioners' pleadings, it is not shown in the writ petition or the relaxation filed later on, through any document, that such number of posts were reserved for each District; how much out of them are consumed; and to what extent those remain to be utilized. In a petition filed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, the High Court will generally not enter into disputed facts to ascertain which version is correct. Some Courts have gone so far as to say that where the facts are disputed, the Court would not exercise its jurisdiction under the relevant Article or section. The proceedings in a petition under the above section by their very nature, are of summary character. It is, therefore, incumbent upon the party applying for a writ to show that he has a clear legal right and that the right to its performance is so clear as not to admit to a reasonable doubt or controversy. Seriously disputed questions of facts cannot be satisfactorily determined in these proceedings, where only evidence relied upon generally consists of the pleadings, their affidavits and documents produced by them. Therefore, there can be no quarrel with the proposition that in exercise of writ jurisdiction, this Court will not go into the disputed questions of facts nor will it generally admit extraneous evidence to determine such questions. In the present case, the petitioners asserted a claim which was repudiated by the other party. It may also be stated that it is not sufficient to refuse the jurisdiction or to oust the jurisdiction simply because the contesting parties are not agreed as to what the correct facts are. The practice of the Court not to go into disputed questions of facts, does not mean that the Court would refuse to exercise the writ jurisdiction simply for the reason that the respondents contest the facts stated by the petitioners; the correct rule being that this Court will not embark upon an inquiry into facts or admit extraneous evidence for determining the disputed facts, but instead confine itself to the material on record for ascertaining the true facts. The proposition finds approval from the judgment recorded in the case titled Province of East Pakistan v. Abdul Karim and others PLD 1959 SC (Pak.) 246, wherein it was held as under:‑‑ "

The question is one of fact that it will be for the High Court, if it so likes, to give a definite finding on the basis of the material on record or to dismiss the petitions on the .ground that they involve disputed question of fact for the determination of which proceedings by way of an application for a writ are not appropriate."

8. A similar proposition came under consideration before the Division Bench of Lahore High Court in a case titled ' Haji Feroze Din and others v. Government of West Pakistan and others' (PLD 1961 (W.P.) Lahore 304) wherein the Division Bench comprising Mr. Justice Muhammad Yaqub Ali and Mr. Justice Anwarul Haq, JJ., gave the following verdict:‑‑‑

(b) Writ‑‑‑Disputed questions of facts, Court will not go into‑‑‑Nor admit ' extraneous' evidence to determine such questions‑‑‑Court will, however, look into material already on record before, it‑‑‑Constitution of Pakistan (1956), Art. 170

. " The proposition once again attracted the attention of the Supreme Court of Pakistan in a famous case titled Ch. Tanbir Ahmed Siddiqi and others v. The Province of East Pakistan and others' (PLD 1968 SC 185), wherein it was observed as under: "‑‑

‑It appears to me that disputed questions of fact and law, requiring investigation, arise for consideration in this case which would therefore not be a suitable subject for adjudication under Article 98 of the Constitution. The appellant must, therefore, be relegated to the remedy open to him by a regular civil suit, if so advised.

"

9. The facts pleaded in the case in hand do not conclusively prove the facts asserted therein. Therefore, the remedy by way of writ in view of the facts requiring investigation, cannot be a suitable subject for adjudication. The facts must be determined conclusively based on rights which are lacking in the case.

10. The point urged by the learned counsel for the petitioners on the strength of the judgment recorded in the case of Javed Iqbal Khawaja and others (1994 CLC 2339) is also found to have no substance in it as the relevant authority does not provide for a direction for all the ad hoc appointees for a requisition to be sent to the public Service Commission. Therefore, the point merits no consideration.

11. So far as the application for amendment is concerned, this application was moved after a considerable delay, particularly at the time of final arguments. Even otherwise, the application was without any substance and did not lead to any conclusion including lending any support to the claim asserted in the petition.

12. In view of the above discussion, the writ petition is found to have no substance in it which is hereby dismissed. The other points raised by the counsel for the parties are of little relevance so far as the point in issue is concerned, therefore, are not required to he adverted to. A.A./140/AJ&K Petition dismissed.