2014 PLP 1809 (YLR)

MUHAMMAD AZAM KHAN, C.J.

The captioned appeal with leave of the Court arises out of an order passed by the High Court on 4-11-2009 whereby while admitting Writ Petition No.1379 of 2009 it was ordered that the post shall not be filled in through Public Service Commission and the respondents were directed to maintain status quo. On 24-11-2009, this Court suspended the interim stay order issued by the High Court mainly on the ground that requirement of Rule 34 of the High Court Procedure Rules has not been fulfilled before issuing stay order.

2. Facts necessary for disposal of the appeal are that the respondent filed a writ petition in the High Court on 4-11-2009 whereby he challenged an advertisement issued by the department for filling in the post of Livestock Officer (B-18) in the direct quota. A learned single Judge in the High Court admitted the writ petition for regular hearing and ordered for maintaining status quo. The order of the High Court to the extent of stay order was suspended and leave to appeal was granted vide order dated 24-11-2009.

3. Sardar Abdus Sammie Khan, advocate, counsel for the appellant, argued that the order passed by the High Court to the extent of stay order is against the High Court Procedure Rules. Under Rule 34 of the AJ&K High Court Procedure Rules, 1984, it is mandatory that prior to issuance of stay order seven days' clear notice must be issued to the other party and if the Court reaches to the conclusion that the matter involved is one of urgent nature and delay in serving the notice will defeat the very purpose of writ petition, the High Court can dispense with the service of notice and issue stay order. The High Court violated the said provision of rules.

4. We have heard the learned counsel for the parties and perused the record. Rule 34 of the Azad Jammu & Kashmir High Court Procedure Rules, 1984, postulates that a clear seven days' notice be issued to the other party before issuing stay order and if in the opinion of the High Court the matter is one of urgent nature and delay in serving the notice will be detrimental to the interest of the petitioner and very purpose of filing writ petition will be defeated, then the High Court can dispense with the requirement of Rule 34 of the High Court Procedure Rules and issue ex parte stay order. This Court in a number of cases has held that the provisions of rule 34 of the High Court Procedure Rules require that a notice be issued to the respondents before passing any interim order in writ petition. In a case reported as Raja Muhammad Asghar Khan v. Muhammad Hafizullah and 5 others 2001 MLD 224, this Court observed as under:-- "While issuing the stay order the High Court violated rule 34 of the High Court Procedure Rules which requires that a notice be issued to the respondents before passing any interim order in a writ petition, but no such notice was given to the appellant before stopping his promotion. The said rule creates an exception in cases of emergent nature by laying down that the requirement of issuing notice to the respondents may be dispensed with but the High Court did not relax the rule before passing the order." The result of above discussion is that the order passed to the extent of issuance of stay order was against the provisions of the Azad Jammu & Kashmir High Court Procedure Rules, 1984 and the impugned order to that extent is set aside. The appeal is accepted with no order as to the costs. HBT/90/SC(AJ&K) Appeal accepted.