P L D 1998 Supreme Court (AJ&K) 1 (PLP)

‑‑‑‑Ss. .42 & 44‑‑‑Appeal to Supreme Court ‑‑‑Laches‑‑‑Effect‑‑‑Cause of action, if any, had arisen to appellant in September, 1995 when he was not appointed as Assistant Commissioner‑‑‑If appellant had filed Constitutional petition on 27th August, 1997, the date on which he had filed petition for leave to appeal in Supreme Court, same would have been hit by doctrine of laches and no relief could have been given to him‑‑‑Acceptance of Constitutional petition filed by respondents would not provide fresh cause of action to appellant‑‑‑If any relief was granted to appellant, it would amount to circumventing the law in indirect manner‑‑‑Whatever was prohibited to be done directly could not be allowed to be done indirectly‑‑‑Appellant was n6t entitled to relief on account of laches.‑?[Laches]. M. Tabassum Aftab Alvi, Advocate for Appellant. Kh. Shahad Ahmed, Advocate for Respondents Nos. l to

4. Date of hearing: 6th October, 1997. BASHARAT AHMAD SHAIKH, J.‑‑This appeal by leave of the Court has been filed by Mahmood‑ur‑Rehman to challenge the judgment of the High Court pronounced on 17th of July, 1997 whereby a direction was given to the Azad Government of Jammu and Kashmir and the Public Service Commission to appoint respondent No.1 Atta Ullah Atta as Assistant Commissioner in consequence of a competitive examination held by the Public Service Commission in pursuance of advertisement published on 12th of April, 1994. The appellant was not a party to the writ petition in which the judgment under appeal was passed, but his case is that he was in fact entitled to be appointed to the vacant post against which respondent No. l has been ordered to, be appointed.

2. Facts which seem to be necessary are that Public Service Commission advertised, some posts of Assistant Commissioners and Assistant Superintendents of Police on 12th of April, 1994. Among other candidates, the appellant and respondent No. l appeared in the examination. Four persons, including respondent No. 1, were recommended by the Public Service Commission for appointment as Assistant Commissioners, but a writ petition was filed to challenge the domicile certificate of respondent No. l by Ghulam Bashir Mughal. The petition was accepted and appeal brought to this Court also failed. Consequently Ghulam Bashir Mughal was appointed as Assistant Commissioner in place of respondent No. 1 against Muzaffarabad quota. After some time Khrushid‑ul‑Hassan, another candidate, filed a writ petition in the High Court in which he stated that two pots of Assistant Commissioners reserved under the quota system for the Districts of Bagh and Kotli could not be filled in for want of suitable candidates. He pleaded that the two posts which had remained vacant should have been filled in on the basis of open merit in light of the policy laid down in Government Order issued on 5th of July 1972. He, therefore, prayed that direction be issued for his appointment on open merit. The writ petition was initially dismissed by the High Court but was accepted by this Court after vacating the judgment of the High Court. Consequently Khurshid‑ul‑Hassan was appointed against one of the two vacant posts.

3. As seen above one post of Assistant Commissioner was still vacant. Against this post respondent No. 1, who had meanwhile obtained a fresh domicile certificate, laid his claim by filing a writ petition in the High Court. The writ petition has been accepted and direction has been issued for appointment of respondent No. l as Assistant Commissioner against the vacancy which was not filled‑in in consequence of the competitive examination mentioned above. As already mentioned, Mahmood‑ur‑Rehman, one of the unsuccessful candidates, has filed this appeal by leave of the Court. However, an objection has been raised in the concise statement filed by the respondents that the appellant has no legal right to assail the judgment of the High Court because his rights have not been adversely affected and also because he did not approach the High Court for enforcement of his alleged right. It was also stated in the concise statement that the appellant had slept over the matter and therefore he had no right to put forward his claim after two and a half years.

4. The appellant explained in para. 12 of the memorandum of appeal that he came to know about the judgment of the High Court passed on 17th of July, 1997 four days before filing a the petition for leave to appeal. It was further stated that when the appellant read the judgment of the High Court he came to know about the litigation initiatd by Khurshid‑ul‑Hassan.

5. It is well‑settled that a stranger to a suit or proceeding can file an appeal but it is equally well‑settled that right to appeal accrues only to that person who is adversely affected by an Order passed in such suit or proceeding. H.M. Saya v. Wazir Ali Industries Ltd., Karachi PLD 1969 SC 65 is one of the cases in which it was laid down by the Supreme Court of Pakistan that a stranger to a suit or proceeding can prefer at appeal against the order or decree passed in that proceeding on the question as to who could file an appeal it was observed: "If the decree or order adversely affects a person he should be permitted to challenge the same in appeal even if he was not made party to the original suit or proceeding". In Malik Iftikhar Ahmad v. Ali Asghar and another PLD 1981 SC(AJK) 47 this Court held that an appeal filed by a person who was not an aggrieved party could not be heard by this Court. Keeping this principle in view we have to advert to the facts of the present case to decide the question whether Mahmood‑ur‑Rehman has locus standi to challenge the order of the High Court in the present case.

6. From the record the facts which emerge are that the appellant applied for the post of Assistant Commissioner in response to advertisement published on behalf of the Public Service Commission on 12th of April, 1994. The Public Service Commission filled in four posts on the basis of the competitive examination held in April, 199.4. The appointment orders of four persons were issued on 17th of September, 1995. The appellant was not one of them but he took no step to assert his claim or to enforce his alleged right for two and a half years till filing of the petition for leave to appeal in this Court on 27th of August, 199‑

7. Meanwhile different developments have taken place. Appointment of respondent Atta Ullah Atta was challenged by Ghulam Bashir Mughal by filing a writ petition which was accepted on 12th of January, 1996. Appeal filed against the judgment of the High Court was dismissed on 13th of March, 1996 by this Court Consequently in place of Atta Ullah Atta, Ghulam Bashir Mughal was appointed. Two posts still remained vacant. Khurshid‑ul-?Hassan filed a writ petition in the High Court that he was entitled under law to be appointed against one of the two vacant posts on the basis of merit. The writ petition was dismissed on 3rd of March, 1996. Appeal filed by Khurshid‑ul-?Hassan in this Court, being Civil Appeal No.27 of 1996 was accepted by this Court on 20th of November, 1996. Consequently Khurshid‑ul‑Hassan was appointed as Assistant Commissioner by the Government. After obtaining a fresh domicile certificate from Muzaffarabad Atta Ullah Atta filed a writ petition on 8th of March, 1997 that he was also entitled under law to be appointed against sixth seat which was still vacant. The case was resisted by the Government but the High Court has, accepted his writ on 17th of July, 1997. During all this period appellant Mahmood‑ur‑Rehman did not pursue any remedy. He all of a sudden decided to enter the arena by filing a petition for leave to appeal against the order of the High Court on 27th of August, 1997. As already mentioned he has tried to explain that he was unaware about the litigation which has been going on throughout this period and he claims that he came to know in the third week of August "from his own sources" that the High Court had accepted writ petition filed by Atta Ullah Atta on 17th of July ‑1997. He further states that when he went through the judgment of the High Court he also came to know about the writ petition which was filed by Khurshid‑ul-?Hassan and the appeal which succeeded in this Court. This explanation has been challenged by respondent Attaullah Atta by filing an affidavit that appellant Mahmood‑ur‑Rehman met him in April, 1996 and there was a discussion between them about writ petition filed by Khurshid‑ul‑Hassan but he (Mahmood‑ur‑Rehman) expressed lack of interest in initiating litigation due to his personal reasons. Respondent Attaullah Atta has also filed in this Court an affidavit sworn by Khurshid‑ul‑Hassan whose name has been mentioned above, in which he has deposed that he was appointed as Assistant Commissioner on 4th of February, 1997 and he gave his joining report in the Services and General Administration Department at Muzaffarabad on the same day. According to the affidavit Khurshid‑ul‑Hassan 'vividly remembers to have met Mahmood‑ur-?Rehman immediately thereafter and he appraised Mahmood‑ur‑Rehman about the latest developments'. It is further stated in the affidavit that Mahmood‑ur-?Rehman seemed to be disinterested in becoming an Assistant Commissioner. These affidavits have been filed in this Court. No exception can be taken to it because in the High Court there was no occasion for filing of these affidavits. These affidavits have not been controverted or countered by Mahmood‑ur?Rehman. However in our opinion we need not go to this question. The fact which stands out prominently is that from 17th of September, 1995, the date on which four persons were appointed as Assistant Commissioners and he was left out, to 27th of August, 1997, the date on which he filed his petition for leave to 8 appeal in this Court, Mahmood‑ur‑Rehman took no step whatsoever and did not initiate any action or remedy for his appointment as Assistant Commissioner. This long period passed without any effort from his side. In our view it amounts to acquiescence and the appellant is not entitled to seek re‑opening of the matter. In this respect the reliance of Khawaja Shahad Ahmed on Anjuman Tahafaz‑e?-Haqooq Shahrian, Quaidabad v. Kh. Muhammad Iqbal and others 1988 SCMR 1871 is well placed. The facts of that case were that an order passed by the Assistant Director, Thal Housing and Planning Department was not challenged by Punjab Government and others, but it was challenged by some other persons before Deputy Secretary, Housing and Physical Planning Department who vacated the order. The Deputy Secretary's order was set aside by the High Court by accepting a writ petition filed by some other persons. Then the Punjab Government and others filed petition for leave to appeal before Supreme Court. Leave was refused on the ground that Punjab Government and others had accepted the order passed by the Assistant Commissioner by not challenging it, therefore, they had no locus standi to subsequently file petition for leave to appeal.

7. Apart from that the question is whether the appellant has been adversely affected by the judgment of the High Court or in other words whether he is an aggrieved person. The appellant has raised many grounds to attack the judgment of the High Court which is under appeal but he has not stated in the memorandum of appeal as to how he was aggrieved or what legal injury the judgment of the High Court has caused to him. Without going into the question whether or not he had a case for being appointed as Assistant Commissioner, the fact of the matter is that in the judgment of the High Court the claim of the appellant, if any, has neither been considered nor commented upon. Any right or privilege has not been taken away by the judgment of the High Court. He had not laid a claim for his appointment in any Court or office, he therefore, cannot complain that the judgment of the High Court might be read to his prejudice From our own reading of the facts we find that no legal injury has been caused to the appellant by the judgment of the High Court. In this view of the matter it is clear to us that the appellant is not an aggrieved person and, therefore, lacks the locus standi to get any relief from this Court through this appeal.

8. The matter can be looked at from another angle. The cause of action, if any, arose to the appellant in September, 1995 when the appellant was not appointed as Assistant Commissioner. If he had filed a writ petition on 27th of August, 1997, the date on which the petition for leave to appeal was filed in this Court, it would have been hit by doctrine of laches and no relief could have been given to him. The acceptance of the writ petition filed by respondent No. l does not give a fresh cause of action to the appellant. In fact, if any relief is granted to him it would amount to circumventing the law in an indirect manner. It is a recognised principle of law that whatever is prohibited to be done directly cannot be allowed to be done indirectly.

9. Detailed arguments were heard by us from Mr. M. Tabassum Aftab Alvi, the learned counsel for the appellant and from Khawaja Shahad Ahmed, from the respondents side. However, in light of the view we have taken about the maintainability of the appeal we need not decide the question relating to the merits of the case. It may be pointed out that the Government had resisted the writ petition in the High Court but before this Court Khawaja Shahad Ahmed not only represented, Atta ullah Atta but also represented the Government. Joint concise statement was filed by Khawaja Shahad Ahmed which supported the judgment of the High Court. 10: As an upshot of the above discussion the appeal is dismissed. However we leave the parties to bear their costs in this Court. A.A./242/SC(AJ&K)?????????????????????????????????????????????????????????????????????????? Appeal dismissed.