2025 PLP (C (PLC(CS))

KH. MUHAMMAD NASIM, J.

This petition for leave to appeal is directed against the judgment of the High Court dated 13.09.2024, whereby, the writ petition filed by the petitioner, herein, has been dismissed.

2. The dispute in this lis pertains to the appointment against the post of Assistant Engineer (Civil), BPS-17, advertised by the Public Service Commission (PSC) through multiple advertisements. Under Advertisement No. 3/2017, nineteen posts were advertised for the Department of Physical Planning and Housing (PP&H) including one reserved for District Muzaffarabad. Similarly, under advertisement No. 7/2018, one post for the Department of Elementary and Secondary Education (E&SE) was advertised on open merit. Additionally, advertisement No. 1/2019 included one post for the Communication and Works Dartment (Central Design Office) on open merit, and advert ca. 2/2019 announced one post for the Higher Education Departs on open merit. The petitioner applied for all posts, participated in the written test and was shortlisted for interviews. On 14.06.2019, the PSC recommended respondent No. 4, Yasir Zia, for PP&H, while on the same day the petitioner was recommended for E&SE. It is alleged that the petitioner's preference was PP&H, therefore, he challenged the handout dated 14.06.2019 before the High Court, on various grounds. During the pendency of writ petition, Respondent No. 4 was appointed vide notification dated 22.08.2019. The petitioner's initial application for amendment to challenge this notification was filed on 26.10.2022, was later withdrawn. Another amendment application of the like nature was filed on 26.02.2024. The learned High Court passed an order on 27.06.2024 that the fate of the application will be decided at the final adjudication of the writ petition. Thereafter, through the impugned judgment the learned High Court not only rejected the application for amendment but also dismissed the writ petition, hence, this petition for leave to appeal.

3. The learned counsel for the petitioner, Mr. Shahid Ali Awan, Advocate, argued that the judgment of the High Court is contrary to law and facts. He contended that the petitioner initially withdrew his application for amendment to challenge the appointment notification of private respondent based on the observation of learned High Court that it could determine the validity of the appointment. under the precedent set by the apex Court in 2015 SCR

860. However, during final arguments, the learned High Court observed that now the aforesaid dicta has been overruled in 2023 SCR 128 which compelled the petitioner to file another amendment application. This application was not decided independently, and the writ petition was dismissed solely on the ground not challenging the appointment notification. He added that the principle of res iudicata is not attracted because the earlier application was not code merits. Furthermore, the amendment can be allowed at any stage of the proceedings. Even otherwise, the petitioner challenged the handout dated 14.06.2019, which is the basic transaction. If this handout is declared as illegal, the whole superstructure built on it has to collapse as held by this Court in a number of judgments. He further argued that the learned High Court dismissed the writ petition without taking into consideration the legal points formulated in its admission order dated 13.08.2020. The learned counsel further highlighted that the same selection process was challenged in another case (Fawad Afzal Mughal v. Azad Government and others). Rule 11 of the Azad Jammu and Kashmir High Court (Procedure) Rules, 1984 postulates that cases involving similar or identical points shall be classified and grouped together and set down for simultaneous hearing, but the impugned judgment has been passed in disregard of this rule. He lastly submitted that important legal propositions are involved, hence, grant of leave is justified. He placed reliance on the cases reported as 2001 YLR 3139, 2019 SCR 975, 2021 SCR 89 and 2013 SCR 563.

4. Conversely, the learned counsel for respondent No.4, Ch. Amjad Ali Advocate, argued that the judgment passed by the learned High Court is sound and lawful. He contended that the petitioner failed to challenge the appointment notification of the respondent dated 22.08.2019 for over three and a half years and moved an amendment application on 26.10.2022, which was subsequently consigned to record as not pressed vide order dated 01.12.2022. After a lapse of more than 5 years, the petitioner filed the second amendment application on 26.02.2024 to impugn the notification dated 22.08.2019. The learned counsel emphasized that the petitioner's application was barred by the principles of laches, estoppel, acquiescence, and waiver. Therefore, the learned High Court committed no illegality in rejecting the application and dismissing the writ petition. He father submitted that the petitioner has challenged the handout, which an existence after the issuance of the appointment notifications indent, rendering the writ petition infructuous. Additionally, the appointment notification of the respondent was issued in compliance High Court's order dated 13.08.2020. Regarding the writes Fawad Afzal Mughal v. Azad Government and others, the learned counsel submitted that the facts of this writ petition are quite different. In that the earlier writ petition was withdrawn, and a fresh writ petition was filed with the Court's permission, and the appointment notifications were specifically challenged. The learned counsel concluded that even on merits, the petitioner has no case, and thus, the High Court's impugned judgment is in accordance with law. He placed reliance on the cases reported as 2022 SCR 795, PLD 2015 SC (AJ&K) and 2015 PLC (C.S.) 354.

5. I have heard the learned counsel for the contesting parties and gone through the record. As the learned High Court has dismissed the writ petition of the petitioner on the sole ground of not challenging the appointment notification of respondent No.4, hence, the controversy before me is confined to this extent only and touching the other merits of the case would be a futile exercise. A perusal of the record shows that in this case the petitioner, after participating in the written test and interview for the post of Assistant Engineer (BPS-17) advertised by the PSC through multiple advertisements, was recommended for the appointment in the department of E&SE. Dissatisfied, he filed a writ petition challenging the PSC's handout dated 14.06.2019, alleging that his preference was PP&H, where respondent No.4, Yasir Zia, was recommended despite the fact that he secured less marks as compared to him. During pendency of writ petition respondent No.4 was appointed vide notification dated 22.08.2019. The petitioner initially filed an application seeking amendment of his writ petition to challenge the appointment notification dated 22.08.2019 but withdrew his application OM 1-12-2022. Subsequently, he filed a similar application once again on 26 2924. The learned High Court passed an order on 27.06 2024 that fate of the application would be decided at the final adjudication of the writ petition. Thereafter, through the impugned judgment the learned High Court not only rejected the application for amendment but also dismissed the writ petition.

6. The learned counsel for the petitioner has explained that his client initially withdrew his application for amendment to challenge the appointment of the private respondent based on the High Court's observation that it could determine the validity of the appointment under the precedent set in 2015 SCR

860. However, during final arguments, the High Court observed that the aforesaid dicta had been overruled in 2023 SCR 128, which compelled the petitioner to file another amendment application. The explanation offered is not plausible because it was the petitioner's responsibility to challenge the notification of appointment.

7. The record unequivocally demonstrates that the petitioner filed the writ petition on 11.07.2019, challenging the handout dated 14.06.2019. Subsequently, the appointment notification of respondent No.4 was issued on 22.08.2019. The respondent No.4 attached the appointment notification with the written statement. Despite being aware of this development, the petitioner failed to take immediate steps to challenge the said notification. Instead, he remained mum for nearly three years before filing his first amendment application on 26.10.2022. However, this application was later withdrawn by the petitioner on 01.12.2022. Once again, the petitioner remained silent for an extended period of over one and a half years, finally submitting a second amendment application on 26.02.2024. There is no cavil with the principle of law that an amendment can be allowed at any stage of proceedings, however, it is equally important to recognize that the doctrine of laches operates as a bar to claims that are not pursued diligently. Laches is premised on the maxim vigilantibus non dormientibus jura subveniunt which means that the law aids the vigilant, not those who sleep on their rights. This doctrine is particularly relevant in cases where undue delay may prejudice the other party. In the present case, the petitioner's silence for a cumulative period of over four years, despite the clear knowledge of respondent No.4's appointment, raises serious concerns about the petitioner's diligence and good faith in prosecuting his claim. Allowing the application filed by the petitioner would effectively permit him to challenge the appointment notification of respondent No.4 without providing any satisfactory explanation for the inordinate delay in raising this issue. In my opinion, a vested right stood accrued to respondent No.4 upon issuance of the appointment notification dated 22.08.2019, was made in compliance with the recommendations of PSC which remained unchallenged by the petitioner, hence, the learned High Court has not committed any illegality while rejecting the petitioner's application for amendment.

8. The argument of petitioner's counsel that the principle of res judicata does not apply as the earlier application was not decided on merits holds no weight in the current context because the petitioner himself abandoned his claim by withdrawing the application. Furthermore, the claim that the handout dated 14.06.2019 is the basic transaction, and if declared illegal, would nullify subsequent actions, is flawed. After issuance of appointment notification, the recommendations of PSC merged into final notification and had no existence, hence, it was mandatory for the petitioner to challenge the appointment notification. In the case reported as Hafiz Muhammad Abid v. Azad Government and others 2015 PLC (C.S) 232 the appellant only challenged the recommendation issued by the PSC in favour of respondent and did not challenge the appointment order. This Court while dealing with the matter held as under:- "

8. As observed earlier that while filing the application for Initiating the contempt proceedings in para 8 of the application the appellant has categorically stated that the appointment notification dated 09.06.2009 has been issued in violation of stay order. When the fact of appointment of respondent No.5 came into the knowledge of the appellant then he has to amend the writ petition or challenged the notification through a separate writ petition. The appointment notification on the strength of which the appellant wants to built up his case in this Court was not challenged before any forum, therefore, no relief can be claimed which is not prayed." In the case reported as Zaker Hussain Shah v. Muhammad Ismail [2012 PLC (C.S.) 383] the order dated 05.01.2005 whereby the names of appellants were entered in list "C" was not challenged. This Court observed that:- "

11. It was vehemently argued by Kh. Muhammad Nasim that the names of the appellants were entered in list 'C' on 5th January, 2005 after completing the training. This order was not challenged by the respondents in any forun but the Service Tribunal set aside the same without being challenged. It may be observed that a Court or Tribunal cannot travel beyond the pleadings of the parties. The judgment has to be delivered in the light of pleadings of the parties. The above order was not challenged before the Service Tribunal. The Service Tribunal set aside the same against the pleadings of the parties. The proposition finds support from the judgments of this Court titled Muhammad Adalat v. Munshi Khan and 3 others 2000 YLR 2774, Muhammad Hussain v. Abdul Majid and others [1993 SCR 3191, Muhammad Amin v. Muhammad Yunus [1993 SCR 340] and Muhammad Siddique Farooqi v. Azad Jammu and Kashmir Government through Chief Secretary, Muzaffarabad and 3 others [PLD 1994 SC (AJ&K) 13]." In the case reported as Bashir Ahmed Mughal v. Azad Government and others [PLD 2015 SC (AJ&K) 31] this Court held that:

49. The learned counsel for one of the respondents argued that the appointments of two Judges of the Shariat Court have been challenged whereas the appointments of the other judges made under the same law has not been called in question, thus, it is discrimination which is prohibited under the Constitution Act. In view of the peculiar facts of this case, we are not impressed by the argument for the simple reason that a specific order against any person whose appointment order has not been challenged specifically before us cannot be passed without providing him an opportunity of healing. If any one desires for specific findings regarding the appointment of any specific person, when it will be challenged, the Court will be in a position to record any specific findings in this regard." Furthermore, the petitioner has taken contradictory stands. On one hand he claims that there was no requirement of challenging the appointment notification and on the other hand he is strongly pressing the application for amendment. It is the settled principle of law that nobody can be allowed to blow hot and cold in one breath.

9. As for the petitioner's reliance on Rule II of the Azad Jammu and Kashmir High Court (Procedure) Rules, 1984 regarding clubbing of identical cases, is concerned, it is pertinent to note that the peculiar facts and circumstances of the cases do not justify their classification as identical. The record indicates that in the writ petition titled Fawad Afzal Mughal v. PSC and others, the petitioner initially challenged the PSC handout dated 14.06.2019. In response, the private respondent, in parawise comments, highlighted that he had been appointed as Assistant Engineer based on the recommendations of PSC. Upon this clarification, the petitioner chose to withdraw his writ petition, seeking permission to file a fresh one. Accordingly, the petitioner filed a new writ petition specifically challenging the appointment notification of the private respondent, therein. In the present case, however, the petitioner neither challenged the appointment notification of respondent No.4 within a reasonable time nor sought to do so through a fresh writ petition. Thus, the reliance on Rule 11 is misplaced.

10. The contention that the learned High Court failed to address the legal points formulated in its admission order dated 13.08.2020 also lacks merit. Once the learned High Court concluded that the petitioner failed to challenge the appointment notification of respondent No.4, which was the crux of the matter, there was no necessity to delve into other legal points. It is a well-established principle that courts are not supposed to adjudicate upon ancillary or academic points when the main issue in the case has been conclusively decided. The petitioner has also placed reliance on various judgments to substantiate his case, however, these precedents do not aid his version as they pertain to distinct factual and legal matrices. The respondent's counsel, on the other hand, has rightly pointed out that the petitioner's conduct demonstrates acquiescence, waiver, and estoppel. In light of the above discussion, I find no illegality or infirmity in the High Court's judgment. The petitioner has failed to point out any substantial question of law warranting the grant of leave to appeal. The petition is, therefore, dismissed. No order as to costs. MQ/14/SC(AJK) Petition dismissed.