2023 PLP (C (PLC(CS)N)

RAJA SAEED AKRAM KHAN, ACJ.

This appeal by leave of the Court has been directed against the judgment of the High Court passed on 17.04.2019, whereby the writ petition filed by the appellants, herein, has been dismissed.

2. The facts necessary for disposal of this appeal are that the appellants, herein, by filing a writ petition challenged the syllabus prescribed in the rules for the post of Assistant Director Ehtesab Bureau. The claim of the appellants was that the authority failed to prescribe the syllabus for the post in question according to the job description. The learned High Court after necessary proceedings dismissed the writ petition through the impugned judgment, hence, this appeal by leave of the Court.

3. Barrister Hamayun Nawaz Khan, Advocate, the learned counsel for the appellants argued that the impugned judgment is based on misconception of law and the facts of the case which is liable to be vacated. He contended that the learned High Court has not attended to and resolved the real controversy involved in the matter and dismissed the writ petition on technical ground in a slipshod manner. He forcefully contended that the sole point involved in the matter is that the syllabus prescribed for the post of Assistant Director Ehtesab Bureau in view of the job description is not relevant. The appellants established a case of discrimination before the High Court but the learned High Court observed that the appellants had already filed a writ petition, they could solicit the relief in the same petition, whereas, the controversy in the earlier writ petition was quite different. He maintained that the learned High Court wrongly applied the provisions of Order II, Rule 2, C.P.C. as the proposition involved in the matter has got no nexus with the proposition involved in the previous round of litigation. He referred to and relied upon the case law reported as Abdul Hakeem and 2 others v. Saadullah Khan and 2 others [PLD 1970 SC 63] and Muhammad Yateem v. Ghulam Nabi and 3 others [PLD 1975 Lah. 563].

4. On the other hand, Sardar Amjad Aslam, Chief Prosecutor (CP) Ehtesab Bureau submitted that the impugned judgment is in accordance with law and interference by this Court is no more required. He drew the attention of the Court towards the prayer clauses of the earlier writ petition as well as petition for leave to appeal and the relief sought in the present writ petition and submitted that the appellants filed the writ petition on the same ground as was raised in the earlier writ petition. He contended that the filing of writ petition on the subject which have already been finalized up to this Court is clear deviation from law and the appellants are liable to be proceeded against under the provisions of Contempt of Court Act. He further stated that the principle of constructive resjudicata is fully applicable, hence, the learned High Court has rightly dismissed the writ petition on this ground. He referred to and relied upon the case law reported as Rizwan Muzaffar v. Azad Government and 8 others [2010 SCR 156], Ghulam Akbar Lang v. Dewan Ashiq Hussain Bukhari and others [2012 SCMR 366], Syed Rasheed Hussain Shah v. Azad Government and 6 others [2014 SCR 883] and Zulqamain Khan and 17 others v. Azad Government and 10 others [2018 SCR 939].

5. We have heard the arguments, examined the record made available and also considered the case law referred to by the learned counsel for the appellants and the learned CP. The perusal of the record shows that the appellants filed writ petition for quashment of the syllabus prescribed for the post of Assistant Director Ehtesab Bureau on the ground that the same is against the nature/description of the post. The appellants, herein, along with others in earlier round by filing a writ petition specifically challenged Rules 2.02, 2.05 and 2.06 of the Azad Jammu and Kashmir Ehtesab Bureau (Composition, Terms and Conditions of Service) Rules, 2017 (hereinafter to be referred as Rules, 2017) in the following manners:- "Therefore, it is most respectfully prayed that this writ petition may graciously be accepted and the Azad Jammu and Kashmir Ehtesab Bureau (Composition, Terms and Conditions of Service) Rules, 2017 dated 29.05.2017 (Rule 2.02 serial No.2 of table, Rule 2.05, 2.06 and Schedule A, specifically), Act XXV of 2017 and Sections 6 and 10 of Act V of 2010, may kindly be set aside by declaring the same as illegal, void ab initio and against the provisions of parent Act, as well as Interim Constitution Act, 1974, in the larger interest of justice." The said writ petition was dismissed and appeal against the judgment of the High Court was also dismissed by this Court vide judgment dated 16.10.2018, delivered in the case reported as Zulqarnain Khan and others v. Azad Government and others [2018 SCR 939]. Rule 2.05 of Rules, 2017, provides that the initial appointment in the service shall be made by the appointing authority subject to the recommendations made by Public Service Commission or concerned Selection Committees as the case may be, in accordance with qualification, experience, criterion and syllabus as prescribed, in schedule-B. In schedule 'B' of rule 2.5. of Rules, 2017, the syllabus has been prescribed. As in the previous writ petition the appellants and others had challenged rule 2.05, therefore, the learned CP rightly argued that the appellants filed the writ petition on such subject which has already been finalized. It appears that the appellants in the garb of writ petition just wanted to protract the period of temporary appointments. The learned counsel for the appellants submitted that the learned High Court has not attended to the merits of the case and dismissed the writ petition on technical ground has no substance. The learned High Court in the impugned judgment while attending to the sole point raised by the appellants in the writ petition after discussing the legal and factual position has very wisely observed that the syllabus cannot be selected on the sweet will of any person or group of persons and it is prerogative of the relevant department. In view of the provisions of rule 2.05 of Rules, 2017, for determination of the eligibility of the candidates syllabus has been prescribed; the claim of the appellants and others in respect of rule 2.05 of Rules, 2017 was rejected by the High Court as well as this Court in the previous round of litigation and now just by specifying the word 'syllabus' the appellants started a new round of litigation which is not permissible under law. Even otherwise, the appellants could specifically raise the objection on the syllabus, as has been raised in the instant lis, in the previous writ petition; therefore, the findings recorded by the High Court for application of the provisions of Order II, Rule 2, C.P.C., are comprehensive, we endorse the same. In view of the overall facts and circumstances of the case, the learned High Court has rightly dismissed the writ petition and has not committed such illegality which may call for interference by this Court. In view of the above, this appeal stands dismissed with costs. SA/6/SC(AJ&K) Appeal dismissed.