P L D 2007 Supreme Court (AJ&K) 10 (PLP)

MUHAMMAD REAZ AKHTAR CHAUDHRY, C.J.

This appeal with the leave to Court is directed against the judgment of the High Court dated 30-9-2005, whereby the writ petition filed by the appellants herein was dismissed in limine.

2. The succinct facts forming the background of the instant appeal are that a post of Librarian B-16 was advertised by the Public Service Commission. The appellants being qualified applied for the same. The interview was conducted by the respondents but the result was not announced. Through a writ petition it was craved that the respondents may be directed to declare the result. The parawise comments were filed by the Public Service Commission. The learned Judge of the High Court dismissed the writ petition in limine vide order dated September, 30, 2005 without hearing the appellants. Now this order has been challenged through the instant appeal.

3. No one appeared on behalf of the respondents, therefore, ex parte proceeding was ordered against them' and ex parte arguments have been heard.

4. Ch. Muhammad Latif, the learned counsel for the appellants, argued that the appellants were not heard and the writ petition was dismissed in limine without providing an opportunity of hearing to them. He further submitted that learned Judge of the High Court has ,failed to consider that the appellants have obtained the degree of Library Science after graduation, while the letter upon which the reliance was placed by the learned Judge was regarding candidates who obtained `Bachelor of Library and Information Science Degree' (hereinafter to be referred as BLIS Degree) after Intermediate Examination. Therefore the reply submitted by the Higher Education Commission was not applicable to the appellants. The learned counsel further submitted that it was a fit case for admission of writ petition, but the learned Judge of the High Court has dismissed the same without applying his mind to the merits of the case.

5. We have heard the learned counsel for the appellants and perused the documents appended with the file. The primary question which requires determination in the instant case is as to whether the learned Judge in the High Court was competent to decide the case on merits, when the appellant or his counsel was not present before the Court. In the instant case when no one was present on behalf of the appellants before the learned Judge of the High Court, then he was competent to dismiss the writ petition for default of appearance but the learned Judge has dismissed the writ petition after considering the facts and legal position of the case. The learned Judge has failed to consider the settled principle of law, that where two provisions can be applied then the less stringent provision should be applied. This view finds support from a case reported as Sattar Muhammad Raja v. Anwarullah Khan 1985 CLC 1550 wherein it was observed as follows:-- "?It has been consistently held by the superior Courts that provisions of Order XVII, Rule 3, C.P.C. are penal in nature and should be construed strictly and stringent provision of rule is not to be applied unless the case does not admit of application of any other provisions of the C.P.C."

6. The aforesaid view further finds support from a case reported as Ali Afsar Khan v. Raza Muhammad Khan and another 1983 CLC 1872 wherein it has been observed as under:-- "There are many authorities of the superior Courts wherein it has been held that these provisions are penal in nature and should be construed strictly and stringent provision of rule should not be applied unless case does not admit of application of any other. provision of Code."

7. In Alif Din v. Fazal Din and others [PLD 1963 AJ&K 11] it was observed that stringent provision of rule not to be applied unless case does not admit application of any other provision of Code.

8. In an unreported judgment of this Court titled Azad Govt. and 2 others vs. Syed Farzand Ali Shah and 10 others (Civil Appeal No.119 of 2004 decided on 2-11-2006) it has been observed as follows:-- "It is a celebrated principle of law that where two provisions of C.P.C. can be applied then the less stringent provision should be applied. In the instant case if at all the learned Judge in the High Court had reached on the conclusion that two provisions of C.P.C. were applicable in this case, then he had to apply less stringent provision. In the instant case the learned Judge High Court has applied both the provisions which is illegal."

9. It has been clearly laid down in the aforesaid reports that a less stringent provisions should be applied. So in the instant case it was enjoined upon the learned Judge to dismiss the writ petition for default of appearance, but he has wrongly dismissed the writ petition on merits and held that it was not a fit case for admission.

10. It would also not be out of place to mention here that in this case the learned Judge of the High Court has dismissed the writ petition, while placing reliance on the reply of Higher Education Commission. He has not considered that this reply was submitted by the Higher Education Commission in respect of candidates, who had got BLIS Degree from Allama Iqbal Open University Islamabad after their Intermediate qualification, whereas the case of appellants was that they acquired this degree after graduation and not Intermediate. The letter dated 5-1-2004 relied upon by the learned Judge in the High Court had no relevancy at all in this case. The Public Service Commission sought clarification regarding those candidates who obtained the BLIS Degree after qualifying Intermediate examination and not graduation. For having proper perception we would like to reproduce the wording of the letter which was written by the P.S.C. to the Higher Education Commission which reads as under:--

11. This letter was replied by the Higher Education Commission through letter dated 5-1-2004. According to the learned counsel for the appellants, the letter dated 5-1-2004 was a reply from the Higher Education Commission regarding those candidates who had obtained the BLIS Degree after passing the Intermediate Examination, whereas the appellants have obtained this degree after graduation.

12. In our view it was a fit case for the admission of writ petition as the points involved require detailed examination. Thus the order of the High Court regarding dismissal of writ petition dated 30-9-2005 is hereby set aside and the writ petition stands admitted for regular hearing and the case is remanded to the High Court. The High Court shall decide the case in accordance with law as early as possible. H.B.T./35/SC(AJ&K)????????????????????????????????????????????????????????????? Case remanded.