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Petitioner: EJAZ AHMAD AWAN VS Respondent: MANZOOR ALI SHAH
1999 P L C (C
1999 P L C (C.S.) 1439
[Supreme Court (AJ&K)]
Present: Sardar Said Muhammad Khan, CJ., Basharat Ahmad Shaikh and Muhammad Yunus Surakhvi, JJ
EJAZ AHMAD AWAN and 5 others
Versus
Syed MANZOOR ALI SHAH and another
Civil Appeal No. 159 of 1998, decided on 1st March, 1999.
(On appeal from the judgment of the High Court, dated 13‑6‑1998 in Writ Petition No.48 of 1998).
(a) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)‑‑‑
‑‑‑‑S. 47‑‑‑Azad Jammu and Kashmir Service Tribunal Act (XXII of 1975), S.4‑‑‑Jurisdiction of Service Tribunal‑‑‑Service Tribunal established under S.47 of Azad Jammu and Kashmir Interim Constitution Act, 1974, would have exclusive jurisdiction in respect of matters relating to terms and conditions of persons who were or have been in service of Azad Jammu and Kashmir and no other Court would grant an injunction, make any order or entertain any proceedings in respect of any matter to which jurisdiction of Service Tribunal extended‑‑‑Provisions of S. 47 of Azad Jammu and Kashmir Interim Constitution Act, 1974 were unambiguous and it had completely ousted jurisdiction of all Courts, including High Court and Supreme Court, but said ouster would be applicable only to those matters over which Service Tribunal had jurisdiction.
(b) Azad Jammu and Kashmir Service Tribunal Act (XXII of 1975)‑‑‑
‑‑‑‑S. 4‑‑‑Appeal before Service Tribunal‑‑‑Competency‑‑‑Aggrieved civil servant could approach Service Tribunal only by filing appeal against a final order passed by a Departmental Authority‑‑‑If a final order had not been passed by Departmental Authority, appeal would not lie to Service Tribunal in matters relating to terms and conditions of service‑‑‑Service Tribunal could not exercise jurisdiction when a final order had not been passed and neither the Tribunal would exercise jurisdiction to issue a declaration simpliciter or to issue a direction otherwise than on appeal.
(c) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)‑‑‑
‑‑‑‑Ss. 42 & 47‑‑‑Azad Jammu and Kashmir Service Tribunal Act (XXII of 1975), S. 4‑‑‑Jurisdiction of High Court in service matters‑‑‑Principles‑‑‑If a final order had been passed by Departmental Authority, High Court had no jurisdiction to entertain any proceedings in respect of such order‑‑‑If High Court would exercise jurisdiction and entertain proceedings in that matter, it would be travelling beyond its jurisdiction, but an inflexible rule could not be laid down on question of jurisdiction of High Court and each case should be decided in light of its own circumstances subject to condition imposed by S. 47 of Azad Jammu and Kashmir Interim Constitution Act, 1974 that High Court would not entertain a proceeding in respect of a matter within exclusive jurisdiction of Service Tribunal‑‑‑Guiding principles for exercising jurisdiction of High Court in service matters; (i) if an adverse order was passed by Departmental Authority, it could only be challenged by filing appeal before Service Tribunal to total exclusion of any other jurisdiction; (ii) if a favourable order was passed by Departmental Authority, but it was not being implemented without just cause and matter suffered from procrastination, a writ, subject to just exceptions, could be issued to enforce its implementation provided always that order of Departmental Authority was valid and legally enforceable, this principle would not apply if previous order was being reconsidered or was being recalled‑‑‑High Court in such cases, could not issue a direction to relevant Departmental Authorities not to withdraw or amend order sought to be implemented through the writ petition; (iii) if a final order had not been passed, civil servant should wait till passing of such order and then challenge same before Service Tribunal instead of approaching High Court for a declaration or injunction regarding matter which fell within ambit of terms and conditions of service e.g. seniority, promotion, posting etc; (iv) if an application/appeal or review was pending for disposal with Departmental Authorities, High Court was competent to issue a direction for its disposal within a reasonable time by fixing a time limit, but that power would be exercisable only if High Court was satisfied that Departmental Authorities were procrastinating or contumaciously refusing to pass a final order.
Azad Government and another v. Zia‑ud‑Din Abdul Hamid and others 1993 SCR 151; Tariq Ajmi v. Maj. (Rtd.) Muhammad Aftab Ahmed PLJ 1998 SC (AJ&K) 316; Qazi Liaqat Ali Qureshi v. Hafiz Muhammad Ishaque.1998 PLC (C.S) 153; Raja Naveed Hussain Khan v. Qazi Khalil‑ur?-Rehman 1994 SCR 267; Dr. Muhammad Sarwar v. Dr. Muhammad Sharif Chatter 1998 PLC (C.S.) 127; AJK Government v. Mujahid Hussain Naqvi 1996 SCR 305; Farooq Ahmad Khan v. Shaukat Jan Bauch 1998 PLC (C.S) 425; S.M.H. Rizvi v: Maqsood Ahmad NLR 1982 Service 110; Maulana Ghulam‑ud‑Din v. AJK Government 1998 PLC (C.S) 1364. Rakhshanda Kokab v. Kaneez Akhtar Civil Appeal No.100‑ to 1998 and Muhammad Tariq Amin and others v. Muhammad Hussain and others 1999 PLC (C.S) 941 ref.
(d) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)‑‑‑
‑‑‑‑Ss. 42 & 47‑‑‑Azad Jammu and Kashmir Service Tribunal Act (XXII of 1975), S. 4‑‑‑Civil service‑‑‑Appeal to Supreme Court‑‑‑Appellants who in their appeal had challenged orders passed by Departmental Authority and orders passed by High Court, had alleged that orders passed by Departmental Authority and High Court were illegal and were liable to be set aside as appellants were not party either before Departmental Authority or before High Court‑‑‑Appellants who were not impleaded as party in proceedings before Departmental Authority and High Court,‑ orders passed thereby were not binding on appellants, but said orders could not be set aside, because if appellants were not bound by said orders and no relief was sought against them, how orders could be set aside against those who were parties in proceedings.
AJK Government v. Mujahid Hussain Naqvi 1996 SCR 305 ref.
(e) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)‑‑‑
‑‑‑‑S. 42‑‑‑Writ jurisdiction of High Court‑‑‑Exercise of‑‑‑High Court, in discretionary writ jurisdiction, could refuse implementation of an order, which was patently illegal.
Maj. Muhammad Aftab Ahmad v. Azad Jammu and Kashmir Government 1992 SCR 307 and Ch. Sadiq Ali v. The Chief Secretary PLD 1996 SC (AJ&K) 29 = 1996 PLC (C.S) 337 ref.
(f) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)‑‑‑
‑‑‑‑S.?? 47‑‑‑Civil???????? service‑‑‑Seniority‑‑‑Determination‑‑‑Appeal before' Supreme Court‑‑‑Respondent/civil servant who, at the relevant time was serving in Scale d‑16 and his name in that category of seniority was at Serial No. 753, had claimed that his name should have been entered at Serial No.222 m seniority list in Scale B‑17‑‑‑Respondent/civil servant had himself admitted that he was never promoted ‑to Scale B‑17 and also had never challenged seniority list of Scale B‑16 in which his name was entered at Serial No. 753‑‑‑Name of respondent/civil servant could not be entered to seniority list of civil servants who were serving in Scale B‑17‑‑‑Name: respondent/civil servant could only be entered in seniority list pertaining to civil servants enjoying Scale B‑17 if lie would have been promoted to said scale.
(g) Azad Jammu and Kashmir Civil Servants Act, 1976‑‑‑
‑‑‑‑S. 23(2)‑‑‑Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977, S. 8(1)‑‑‑Kashmir Civil Service Rules, R. 24‑‑‑Civil service‑‑‑Appointment‑‑‑If a civil servant was granted minimum of a given grade without right to earn increments of that grade, it could not be said that he had been appointed to that grade, but it would only mean that he had been given fixed pay and not the grade‑‑‑As long as said civil servant would draw fixed pay, it would not be deemed that he had entered the grade‑‑‑ "Continuous appointment in grade" of civil servant within meaning of R.8(1) (a) of Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977 would begin when he would start getting increments and his seniority would be counted from date when he was awarded running ‑scale and not from date when he started receiving fixed pay.
Syed Faqir Shah v. Azad Government of the State of Jammu and Kashmir and others W. P. No. 11 of 1971, and Azad Government and another v. Zia‑ud‑Din Abdul Hamid and others 1993 SCR 151 ref.
Raja Muhammad Hanif Khan, Advocate for Appellants.
Ch. Muhammad Ibrahim Zia, Advocate for Respondent No. 1.
Date of hearing: 3rd February, 1999.
JUDGMENT
SARDAR SAID MUHAMMAD KHAN, C.J.‑‑‑This appeal has been directed against the judgment of the. High Court dated 13‑6‑1998, whereby the writ petition filed by respondent No. 1 was accepted and a direction was issued to the Director Education for implementing the order, of the Secretary Education dated 30‑10‑1997, whereby the appeal filed by Syed Manzoor Ali Shah, respondent, was accepted and it was ordered that his name should be entered in the list of Senior Teachers Selection Grade B‑17 at Serial No.232.
2. The brief facts of the case are that respondent, Syed Manzoor Ali Shah, filed an appeal before the Secretary Education alleging that he was appointed as Primary Teacher on 4‑10‑1978. Subsequently, on passing B. Ed. Examination, he was given senior scale B_14 from 20‑9‑1979. It was further alleged that according to his knowledge previously no other seniority list of the Senior Teachers serving in Grade B‑17 was prepared, except the impugned one, in which his name did not figure at all. Thus, he prayed that his name might be entered in the said seniority list at Serial No. 232. His appeal was accepted by the Secretary Education vide notification dated 3‑10‑1997, whereby it was ordered that his name should be entered at Serial No.232 in the seniority list of the Senior Teachers Selection Grade B‑17. According to the respondent, he made repeated applications to the Director Education to amend the said seniority list according to the order of the Secretary Education passed on his appeal but needful was not done. Thus, he filed a writ petition in the High Court, wherein he impleaded Director Education (Secondary Schools) as party, seeking direction against him to implement the order of the Secretary Education. The written statement in the writ petition was filed on behalf of Director Education through Mr. Muhammad Bashir Butt, Advocate, contending that the seniority list was prepared according to the principle laid down by the Supreme Court in a case reported as Azad Government and another v. Zia‑ud‑Din Abdul Hamid and others (1993 SCR 151) and that the order of the Secretary Education was violative of the relevant rules against which a review petition has been filed. It was further contended that the name of Syed Manzoor Ali Shah, respondent, in the relevant seniority list, was entered in view of the date on which he earned the running senior scale; as the running pay scale was given to the respondent on 30‑11‑1987, after passing B.Ed. examination, his name was rightly placed at serial No. 753 of the relevant seniority list. Thereafter, an application was filed in the High Court on 8‑6‑1998 alongwith the comments of the Secretary Education by Mr. Muhammad Bashir Butt, Advocate, stating that according to the instruction given to him by the Law Department, the earlier written statement filed on behalf of the Director Education on 15‑5‑1998 was not valid without the approval of the Secretary Law. He further stated that as the Education Secretary was not impleaded as a party, either his comments which were filed with the applicant might be treated as his written statement or he might be impleaded as proforma-respondent in the writ petition and thereafter, permission to file written statement on his behalf might be granted. However, the interim order dated 8‑6‑1998 passed by the High Court shows that the Secretary Education was heard in person and his comments, which had already been filed by the counsel for Director Education were also considered. After hearing the arguments in the case, the High Court accepted the writ petition and directed the Director Education to implement the order of the Secretary Education by entering the name of Syed Manzoor Ali Shah, respondent herein, at Serial No.232 of the seniority list of Senior Teachers who were serving in Grade B‑17. The appellants, herein, filed present appeal alleging that the decisions of the Secretary Education and the High Court were given without hearing them. It was contended that they were necessary parties and the said decision of the Secretary Education and the impugned judgment of the High Court are not sustainable or binding on them as they were not party to the proceedings taken by the said authorities. It has been further contended that Syed Manzoor Ali Shah, respondent, was junior to them because he passed his B.Ed. Examination in the year 1987,without which the running Grade B‑16 could not be allocated to him under the relevant rules. It was contended that in the seniority list pertaining to the Senior Teachers, Grade B‑16 the name of Syed Manzoor Ali Shah appears at Serial No. 753 in view of date on which he got running senior scale. His name could not be entered in the seniority list of the teachers who were enjoying senior Scale B‑17 because he was at Serial No. 753 in the seniority list of Senior Teachers who were serving in running pay "scale B‑16, as only 30% out of teachers enjoying running pay scale B‑16 could be promoted to B‑17 in order of the seniority:
3. Raja Muhammad Hanif Khan, Advocate, the learned counsel for the appellants, apart from reiterating the abovementioned points raised in the memo of appeal, has further argued that the writ petition before the High Court by respondent, Manzoor Ali Shah, was not competent because the matter pertained to the seniority which falls within the ambit of 'terms and conditions of service of civil servants. Thus, according to the learned counsel for the appellants, the direction given by the High Court in exercise of writ jurisdiction was without jurisdiction. He has contended that as the respondent was serving in B‑16 and was never promoted to Grade B‑17, how his name could be entered in the seniority list of the Senior Teachers who were serving in Grade B‑17. The learned counsel for the appellants has further submitted that Manzoor Ali Shah, respondent, chose a shortcut for his promotion to Grade B‑17 by seeking the entry of his name in the seniority list of teachers who were serving in Grade B‑17 and thereby an automatic promotion to said grade; despite the fact that he was not eligible to such promotion in view of his position in the seniority list of the Senior Teachers serving in B‑16 and that, too, without the recommendation of the concerned Selection Board. He has argued that the implementation of a patently illegal order cannot be directed in exercise of writ jurisdiction. He cited some authorities in support of his contention that the writ petition to the High Court was not competent, because the question relates to the terms and conditions of service of civil servants. We will refer and discuss these authorities at the proper place. The learned counsel has further contended that as the appellants were not impleaded as party despite the fact that their seniority was adversely affected, the direction given by the High Court is not sustainable because the appellants were not provided the opportunity of being heart The learned counsel has submitted the following authorities in support of his aforesaid contention: ‑‑‑
In case 'reported as Tariq Ajmi v. Maj. (Rtd.) Muhammad Aftab Ahmed (1999 MLD 187) it was argued in this Court `that as the concerned persons were not aggrieved, the writ petition filed in the High Court by the respondents should have been dismissed. It was held that it is not necessary to be aggrieved' in strict juristic sense; if a person can, prima facie, show that he has interest which has been adversely affected by an executive or judicial order, he can invoke the writ jurisdiction of the High Court. It was further observed that as the aggrieved persons who were not impleaded in the High Court as party had been adversely affected, the limitation would start from the date of their knowledge and, thus, the prayer for the condonation of delay in filing the appeal to the Supreme Court was allowed by this Court. Consequently, the appeal filed by the appellant was accepted and the order passed by the High Court in favour of the respondents in exercise of wit jurisdiction was vacated.
In case reported as Qazi Liaqat Ali Qureshi v. Hafiz Muhammad Ishaque (1998 PLC (C.S) 153), it has been observed that as the Selection Committee which conducted tests and interviews of the parties concerned was not arrayed as respondent, no effective writ could be issued in the absence of said committee. Thus, the writ should have been dismissed for the non-?impleadment of the necessary party, despite the fact that no objection was raised in the I‑high Court.
4. Ch. Muhammad Ibrahim Zia, Advocate, the learned counsel for respondent No. 1, has controverted the arguments advanced on behalf of the ‑appellants. He has argued that if the appellants had any grievance against the order of the Secretary Education, they should have appealed against the said order. According to the learned counsel, the order passed by the Secretary Education in favour of Syed Manzoor Ali Shah, respondent, had become final and the Director Education was bound to implement it. The learned counsel has contended that there is ample authority in support of the proposition that if an order is not implemented by the concerned authority, a direction can be issued for the implementation of the same in exercise of writ jurisdiction. The learned counsel has argued that as the grievance of Syed Manzoor Ali Shah, respondent, arose when the seniority list of the teachers serving in Selection Grade B‑17 was issued, it was not necessary for him to challenge the seniority list which was prepared with regard to the teachers serving in B‑.16. The learned counsel has argued that the appellants can seek the redressal of their grievance, if any, before the Service Tribunal even now by seeking the condonation of delay. He has further maintained that whether the‑order of the Secretary Education was violative of law or rules could not be gone into .by the High Court in exercise of writ jurisdiction or by this Court on appeal against the impugned judgment. This question can only be agitated and decided by the departmental authority and the Service Tribunal in the proceedings under the relevant law. Thus, he has maintained that the appellants were not legally competent to argue in the present proceedings that as the impugned order passed by the Secretary Education was illegal, the direction could not be issued for the implementation of the same. The learned counsel has further argued that a writ could be issued by the High Court for the implementation of the order of the Secretary Education. He has maintained that the question of the implementation of an order is quite different from the question of deciding the matter regarding the terms and conditions of service of a civil servant. He has also cited some authorities in support of his contention to which we will be presently adverting to while deciding this question.
5. Let us first resolve the controversy raised by the learned counsel for the appellants and opposed by the learned counsel for the respondents that the High Court has no jurisdiction in any circumstances to issue any direction touching the terms and conditions of service of civil servants. The learned counsel for the parties have cited a number of cases in support of their respective stands. The judgments are summarised below.
In case reported as Raja Naveed Hussain Khan v. Qazi Khalil‑ur?Rehman (1994 SCR 267) the facts were that one Khalil‑ur‑Rehman had some grievance with regard to the fucation of his seniority. He made a representation which was followed by several petitions but of no avail. Subsequently, he approached the Prime Minister for the redressal of his grievance. The Prime Minister marked his petition to the Senior Minister fdr detailed examination of the matter. The Senior Minister submitted a report in his favour which was accepted by the Prime Minister on 9‑4‑1991 but the said order of the Prime Minister was not implemented. Consequently, a writ petition was filed seeking direction for the implementation of the order passed by the Prime Minister. The writ petition was dismissed by the High Court mainly on the ground that the matter was being reconsidered by the Special Assistant of the Prime Minister and after the resubmission of the report by the Special Assistant the proper order would be passed by the Prime Minister. The High Court disposed of the writ petition observing as under:‑‑‑
"7. The proposition relating to determination of seniority of petitioner and respondents Nos. 3, 4 and 5 is an intricate detailed proposition of facts and law: These have already been scrutinized at proper forum. Therefore, it is not deemed expedient to have another exercise into these questions. This may not be necessary. Be that as it may, the fact remains that at this stage, the grievance of the petitioner may be redressed by issuance of direction to respondents Nos. 1' and 2 to render expeditious disposal of the matter under law. Therefore, respondents Nos. l and 2 are hereby directed to dispose of the matter expeditiously, pertaining to seniority of the petitioner by giving effect to the approval of Acting Prime Minister, dated December 27, 1993 and Special Assistant, dated February 8, 1993, in due course of law. The petition is disposed of accordingly. No order as to costs."
An appeal was filed against the aforesaid order of the High Court to this Court which was accepted and the judgment of the High Court was vacated observing that the High Court had given direction in the matter which pertained to the terms and conditions of a civil servant, which were being reconsidered by the concerned authority; it was observed that directions of the High Court were tantamount to depriving of the Prime Minister from exercising his legal right to give full consideration to the matter involving the right of the concerned civil servants.
In case reported as Dr. Muhammad Sarwar v. Dr. Muhammad Sharif Chatter (1998 PLC (C.S) 127), the facts were that the appellant with some others was promoted to scale B‑20 after the approval of the relevant Selection Board whereas respondent No.l was not approved for his promotion to Scale B‑20 and was, thus, superseded by the appellant and others. However, respondent No. l manoeuvred amendment in his A.C. Rs. and on the basis of said amendments his review petition was accepted by the authority concerned. Consequently, a notification was issued on 13‑5‑1993 whereby the respondent was also promoted to scale B‑20 with retrospective effect from 7‑5‑1992. As a result of .the said notification, the respondent became senior to the appellant and some others despite the fact that the appellant and some others had been promoted to B‑20 much earlier after the supersession of the respondent. Thereafter, one Ali Akbar, feeling aggrieved by the notification dated 13‑5‑1993, challenged the same before the competent Authority through a representation which was accepted and the respondent again became junior to the appellant and others. Thus, the Government intended to amend the order of promotion which was passed in favour of the respondent. The respondent filed a writ petition in the High Court seeking a writ of prohibition against the Government that the notification dated 13‑5‑1993 should not be amended or cancelled in view of the provisions contained in section 21 of the General Clauses Act because the same had been acted upon. The High Court accepted the writ petition and issued a writ of prohibition against the Government. The appeal was accepted by this Court and the judgment of the High Court was set aside, inter alia, on the ground that‑ as the order was patently void, the same could be recalled even if the same had been acted upon. With regard to the legality of, the order dated 13‑5‑1993, it was observed that it was for the concerned authority to go into the question of legality. However, it was observed that the High Court had not taken into consideration the dictum of this Court reported as Raja Naveed Hussain Khan v. Qazi Khalil‑ur‑Rehman (1994 SCR 267], wherein it has been observed that if the matter pertains to the terms and conditions of service of the civil servants, that cannot be protected or assailed by invoking the writ jurisdiction of the High Court which is barred, under section 47 of the Azad…
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