2018 PLP (C (PLC(CS))

CH. MUHAMMAD IBRAHIM ZIA, C.J.

The captioned appeal by leave of the Court is addressed against the judgment of the High Court dated 19.05.2016, whereby writ petition filed by respondents Nos.1 and 2, herein, has been accepted.

2. The precise facts giving rise to the instant appeal are that respondents Nos.1 and 2 herein, filed writ petition in the High Court alleging therein that they are permanent employees of the Azad Jammu and Kashmir Audit and Accounts Department and presently are posted in grade (B-19). They alleged that the post of Director General Audit, (B-20) fell vacant after the retirement of Mr. Saeed Akhtar Malik on his superannuation, who was assigned the Additional Charge of the said post. After his retirement respondent No.1 was appointed on current charge basis vide notification dated 29.04.2015. It is further stated that according to the rules, Auditor General Pakistan has to take oath as Auditor General of Azad Jammu and Kashmir under the provisions of the Azad Jammu and Kashmir Interim Constitution Act, 1974 and then he is considered as authority in respect of the matters of appointment, promotion and transfer of the officers within the department with the consultation and approval of Azad Jammu and Kashmir Council. It is further stated that respondent No.2, therein, through order dated 27.05.2015 has appointed respondent No.5, therein as Director General, Audit Azad Jammu and Kashmir without taking the oath as Auditor General of Azad Jammu and Kashmir, which is essential according to the provision of Azad Jammu and Kashmir Interim Constitution Act, 1974. The respondents claimed that they are entitled to be considered for promotion to the aforesaid post in accordance with the qualification, seniority and eligibility. They sought cancellation of the order dated 27.05.2015 on the ground that the same has been issued without lawful authority. After necessary proceedings, the learned High Court through the impugned judgment dated 19th May, 2016, accepted the writ petition with a direction to the respondents therein to appoint any officer serving in B-19 in the department/relevant field, whosoever, appears at the top of the seniority list and also suitable. This judgment of the High Court is subject of the instant appeal by leave of the Court.

3. Raja Amjad Ali Khan, Advocate, counsel for the appellant after narration of necessary facts submitted that the learned High Court has wrongly entertained the writ petition as the subject matter raised in the writ petition relates to the terms and conditions of the civil servants. Thus the contesting respondents being civil servants were not competent to file the writ petition in the High Court. He submitted that admittedly no rules for appointment against the disputed post have been framed, thus, in this state of affairs, the High Court should have issued the direction to the authority for framing the rules. The High Court has failed to issue the direction to the authority, hence the judgment is not in accordance with the law. He further argued that if the impugned judgment holds the field, the powers of the rules making authority shall be prejudiced and the authority will be bound to frame the rules according to the direction of the High Court. In this state of affairs, the impugned judgment is not maintainable. Thus, while accepting this appeal the impugned judgment may kindly be set aside and consequently, the writ petition filed by the contesting respondents may kindly be dismissed.

4. Syed Nazir Hussain Shah Kazmi, Advocate, counsel for proforma-respondents Nos.3 to 6 adopted the arguments of the counsel for the appellant and requested for acceptance of appeal.

5. Mr. Muhammad Yaqoob Khan Mughal, Advocate, has filed an application on behalf of Aziz-ur-Rehman and Muhammad Hassan Rana and submitted that as the real respondents in the appeal who were posted as Director General Audit one by one in grade (B-20) have already been retired and now the applicants are holding the posts on temporary basis and they being eligible according to the rules and seniority were entitled to be permanently appointed. Thus they may be arrayed as party in the appeal and be heard.

6. We have considered the arguments of the learned counsel for the parties and examine the record made available. So far the first argument/objection of the counsel for the appellant that the writ petition was not maintainable as the matter raised relates to the terms and conditions of petitioners/ civil servants is concerned, in our opinion due to subsequent development this objection is mere of an academic nature as both the petitioners therein, admittedly have been retired from service. They are no more contesting the appeal. Moreover, through the impugned judgment the learned High Court has not determined any term and condition of their service. Thus the first argument having no substance stands repelled.

7. The appellant admitted that no departmental rules in relation to the questioned post have been framed but it is very funny that on behalf of the appellant it has been averred in the memo. of appeal as well as argued by the counsel that the High Court should have issued the direction for framing the rules. It appears that now the Courts have to remind every institution and the public functionary of its duties, which is very regrettable. According to the law every institution and public functionary are duty bond to perform their assigned functions. As in this matter according to the enforced statutory provisions of law it is the duty of the appellant to frame the rules and failure amounts to negligence. The impugned judgment of the High Court cannot be objected or challenged on the ground of negligence and violation of law by the appellant rather the appellant should rectify the wrong if not earlier then hence forward take necessary steps for framing of the rules.

8. The argument of the counsel for the appellant that due to the impugned judgment the powers of the rules making authority will be adversely affected, appears to be totally misconceived, as in the impugned judgment there is nothing to curtail the powers of the rules making authority. The impugned judgment of the High Court is well reasoned, consistent with the spirit of law and rules which does not call for any interference. The appellant has failed to make out any valid ground for interference in the impugned judgment.

9. Even otherwise, admittedly the contesting respondents Nos.1 and 2, have been retired from service hence not contesting the appeal, whereas the other respondents are proforma-respondents whose interest and stand is the same as of the appellant, thus practically there is no contesting party. In view of the principle of law laid down by this Court in the case reported as Azad Government of the State of Jammu and Kashmir v. Sarfraz Alam and others [1996 SCR 326] that no appeal can be heard without there being a respondent, this appeal cannot be proceeded further.

10. So far the application of the interveners for impleading them as party is concerned, the question whether they are eligible to be promoted cannot be resolved in the appeal. Therefore, the application stands rejected. With the above observation this appeal stands dismissed with no order as to costs. ZC/65/SC(AJK) Appeal dismissed.