2001 PLP (C (PLC(CS))

SARDAR SAID MUHAMMAD KHAN, C.J.

This appeal has been defected against the judgment of the High Court, dated 28-1-2000, whereby the writ petition filed by the appellant, ` herein, was dismissed.

2. The brief facts of the case are that the appellant was appointed as Naib Qasid by the Headmaster High School Naran vide order, dated 25-2-1999. It is alleged that the post of Naib Qasid in the aforesaid School did not exist and the same was got created through the efforts of the Headmaster of the School vide notification, dated 22-2-1999 with effect from 1-12-1998. It is further the case of the appellant that he had been drawing pay for four months as a consequences of the aforesaid appointment. However, the District Education Officer illegally appointed respondent No.2 as Naib Qasid in place of the appellant vide his order, dated 1-5-1999. The aforesaid appointment of respondent No.2 was challenged by filing a writ petition. The High Court dismissed the writ petition observing that appointment of the appellant was not made according to the relevant rules and declared the post in question vacant. The writ petition filed by Muhammad Aftab Khan, appellant, was dismissed by the High Court in terms that the post m question should be tilled in after advertising the same and calling application etc. Muhammad Aftab Khan, appellant, who had filed writ petition in the High Court, feeling aggrieved challenged the order of the High Court contending that in fact his appointment was made on the, recommendation of selection committee and that there was no question for advertising the post of Naib Qasid as was directed by the High Court in his writ petition. Meanwhile, in pursuance of the directions of the High Court, the concerned authority advertised the said post, constituted a selection committee which called the applications etc. and after taking test appointed one Syed Nisab Hussain Shah as Naib Qasid .on the post which was previously the subject-matter of controversy between Muhammad Aftab Khan on the one hand and Fida Hussain Shah on the other. Muhammad Aftab Khan wanted to amend the memorandum of appeal challenging the - recommendation made by the selection committee and the appointment of Syed Nisab Hussain Shah on the grounds which he had already taken in petition for leave to appeal i.e. that the High Court was not legally justified to direct to advertise the post and holding interview etc., afresh. However, the said application for the amendment in the memorandum of appeal was rejected by the order of this Court, dated 1'7-5-2000 with the observation that the appellant, herein, if so advised may, seek remedy against Syed Nisab Hussain Shah in proper forum through appropriate means.

3. Mr. M. Tabassum Aftab Alvi, the learned counsel for the appellant, has argued that the appellant was in fact appointed on the recommendation of the concerned selection committee as Naib Qasid and thus, his appointment which was made by the Headmaster of the School was not challenged by filing any appeal etc. He has contended that the District Education Officer was not competent to cancel the said appointment order and to appoint Fida Hussain Shah, respondent No.2, in his place, He has further argued that the appellant was not heard at the time of the cancellation of his order of appointment and he was condemned unheard. He has also maintained that mere fact that the appellant subsequently participated in interviews etc., which were held in pursuance of .the judgment of the High Court would not disentitle him to the relief against respondent No.2 on the basis of the principle of acquiescence. He has further submitted that even otherwise it was not incumbent upon the appointing authority to advertise the post in question in the newspaper before making the appointment of the appellant. He has referred to the following authorities in, support of his contention:-- In an unreported case titled Muhammad Arshad Khan v. Azad Government through its Chief Secretary and others (Civil Appeal No.56 of 1999, decided on 17-12-1999), the appeal was dismissed on merits observing that even otherwise it was not necessary to advertise the post in question in newspaper. It was further observed that it is settled principle of law that no one should be condemned unheard but the said principle was violated in case of the appellant. In a case reported as Umer Hayat v. Azad Government and 3 others (1999 PLC (C.S.) 78), the question of estoppel by acquiescence was discussed in detail and it was held that necessary ingredients for bringing the case within the ambit of acquiescence were not proved; the principle of acquiescence would have been applicable if the appellant had appeared in the examination and after failing in getting his appointment he would have filed writ petition whereas he had already filed the writ petition on the basis of violation of quota system. This authority is distinguishable because in the instant case the appellant on the due hand challenged the order of the High Court but on the other hand he appeared in the test etc., which were held in pursuance of the judgment of the High Court, in which he failed and one Syed Nisab Hussain Shah was appointed on the recommendation of the selection committee. In a case reported as Muhammad Rashid Choudhry v. Chairman AKLASC and others (1993 PLC (C.S.) 1201), the concept of 'Master and Servant' was discussed in context of the provisions contained in section 44(2) of the Azad Jammu and Kashmir Interim Constitution Act, 1974 and principles for issuing writ of mandamus were discussed. This authority is not relevant to the facts of the present case and need not be commented upon.

4. In reply, Syed Mumtaz Hussian Naqvi, the learned counsel for respondent No.2, has controvertesd the argument advanced on behalf of the appellant. He has argued that the appeal was preferred against an order which was passed as a result of controversy between the appellant and respondent No.2; Syed Nisab Hussain Shah was not a party in the said proceedings. He has contended that when the post was advertised after the judgment of the High Court the appellant made application seeking his appointment and also participated in interview etc., but he failed in tests etc., and one Syed Nisab Hussain Shah was appointed as Naib Qasid. Thus, both the appellant, herein, and Fida Hussain Shah, respondent No.2, could not be appointed because they did not earn the recommendations of the selection committee. The learned counsel has argued that the appellant is estopped to press the appeal in which Syed Nisab Hussain Shah is not a party, because he is not only estopped by his conduct to prosecute the present appeal but the same has also become infructuous in view of the fact that presently the post in question is held by Syed Nisab Hussain Shah, who is not party before this Court. He has further argued that before annulling the appointment of the -appellant, herein, no notice was necessary; because the same was made without advertising the post as was mandatory under rule 17 of the Azad Jammu and Kashmir (Appointment and Conditions of Service) Rules, 1977 (hereinafter shall be called the Rules). The learned counsel has cited the following authorities in support of his contention:- In a case-reported as Secretary for Prime Minister Secretariat Azad Government of the State of Jammu and Kashmir, Muzaffarabad and others v. Muhammad Aslam and 5 others (2000 PLC (C.S.) 155), it has been held that as the appointment was made in violation of rule 17 of the Rules, it was not necessary to issue notice to the concerned party; the same was ab initio void. In a case reported as Abdul Qadir v. Abdul Karim (1999 PLC (C.S.) 947) it has been held that as the appellant has acquiesced in the relevant order, he was estopped to seek any relief in exercise of writ jurisdiction. It was observed that as after -his retirement the concerned civil servant got benefits in form of amount of pension etc., he could 'not be allowed to turn round and demand his reinstatement in service. In a case reported as Ghulam Mustafa- v. Azad Government and 2 others (1996 MLD 355), it has been held that acquiescence by conduct created estoppel to seek the remedy by invoking the writ jurisdiction of the High Court. In a case reported as Rashid-Hussain v. Gul Afsar Khan and 3 others (1999 PLC (CC.S.) 1248) it has been held that posts in Grade-l and above are to be advertised in newspapers before making an appointment. Thus, it was held that illegal appointment could not be restored in exercise of writ jurisdiction of the High Court.

5. We have given due consideration to the arguments raised at the Bar. As is evident from the facts narrated above, after the judgment of the High Court the appellant, herein, participated in the proceedings taken by the selection committee but both he and respondent No.2 faired to obtain their appointment on the basis of merit determined by the selection committee and one Syed Nisab Hussain Shah was appointed as Naib Qasid who is not party in the present appeal. It is also admitted by the learned counsel for the appellant that he is already seeking appropriate remedy by filing writ petition in the High Court which is still sub judice. When the appellant participated in the proceeding taken in pursuance of the judgment of the High Court and failed to obtain his appointment, he could not be allowed to challenge the impugned judgment of the High Court which was passed in exercise of writ jurisdiction. A party cannot be allowed to blow hot and cold in the same breath. Even otherwise, the appeal filed by the appellant, herein, has become redundant because he sought his grievance against Fida Hussain Shah, respondent No.2, but after the appointment of Syed Nisab Hussain Shah, it is preposterous to suggest that the appellant still has right to seek remedy against respondent No. 2; he is no more holding the appointment which was challenged by the appellant, herein, by filing writ petition. So far as the question that no notice was issued to the appellant when his appointment was set aside by the District Education Officer is concerned, the same is also irrelevant because the appeal itself has become redundant. Even otherwise, it is evident from the case law cited by the learned counsel for the respondents referred to above, that no notice was necessary to the appellant because he was appointed two days after the creation of the post in question without complying rule 17 of the Rules. The unreported case of Muhammad Arshad referred to above, could not be interpreted to mean that no advertisement of the post is necessary under rule

17. In the said case the publication was made otherwise than advertising the post in the newspaper as is permitted in the said rule. It was under these circumstances that observations were made to the effect that advertisement in the newspaper for the publication of the post was not necessary; it does not imply that the publication was not necessary at all. In the light of what has been stated above, the appeal is hereby dismissed with no order as to the costs.