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Petitioner: GHULAM AHMAD VS Respondent: AZAD GOVERNMENT OF THE STATE 'OF JAMMU AND KASHMIR
1992 P L C (C
1992 P L C (C.S.) 1301
[Azad J&K High Court)
Before Kawaja Muhammad Saeed and Choudhary Muhammad Riaz Akhtar, JJ
Khawaja GHULAM AHMAD
Versus
AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR and 2 others
Writ Petition No. 20 of 1978, decided on 10th March, 1992.
(a) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)--
----S.47---Jurisdiction of Administrative Courts and Tribunals---Extent and scope---Administrative Courts and Tribunals could be established to exercise exclusive jurisdiction in respect of matters relating to terms, conditions and discipline of the persons who were in the service of Azad Jammu and Kashmir Government---When administrative Courts were established, no other Court was empowered to make any order in respect of any matter to which jurisdiction of such administrative Courts or Tribunals was extended---Limited right of appeal on a substantial question of law of public importance before Supreme Court has been provided against decision of administrative Courts/Tribunals.
PLD 1980 SC (AJ&K) 5 ref.
(b) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)---
----S.44---Jurisdiction---Extent of---Jurisdiction under S. 44 of the Interim Constitution Act could be exercised by the High Court subject to the other provisions of the Constitution.
(c) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)---
----Ss.44 & 47---Relief to civil servant---Forum---After establishment of Service Tribunal, if any civil servant was eligible to get relief from the Tribunals, established under S.47 of the Interim Constitution Act, High Court in exercise of its powers under S.44 of the Interim Constitution could not grant any relief to such civil servant for its jurisdiction has been expressly barred by the Interim Constitution Act, 1974.
(d) Azad Jammu and Kashmir Service Tribunal Act, 1975---
----S. 4---Jurisdiction of Service Tribunal---Ouster of---Service Tribunal would be competent to hear appeal against the order of competent authority made in consequence of departmental inquiry where penalty imposed on a civil servant was one of dismissal, removal, reduction in rank or compulsory retirement from service---Jurisdiction of Service Tribunal in absence of such mentioned facts, was ousted---Where aggrieved person was serving in the Ministerial Establishment of High Court when impugned order was passed against him, he could not invoke appellate jurisdiction of Service Tribunal for redress of his grievance---Jurisdiction of Service Tribunal was also ousted where order in question, related to decision of Authority determining fitness or otherwise of a person to be appointed or to hold a particular post.
PLD 1980 SC AJ&K 5 ref.
(e) Azad Jammu and Kashmir Courts and Laws Code Act, 1949---
----S.12---Appointment of Registrar of the High Court---Person who was not a Law graduate could be appointed as Registrar of the High Court---Petitioner although a Matriculate was rightly appointed as Registrar of High Court.
(f) High Court Establishment (Appointment and Conditions of Service) Rules, 1975---
----R.20---Penalty---Petitioner being employee of High Court Establishment, Chief Justice of the High Court was the only competent Authority who could pass any adverse order against petitioner under High Court Establishment (Appointment and Conditions of Service) Rules, 1975--Impugned order having been passed by Government had no competence.
(g) Azad Jammu and Kashmir Civil Servants Act, 1976---
----S.12---High Court Establishment (Appointment and Conditions of Service) Rules, 1975, R.20---Azad Jammu and Kashmir Civil Servants Act, 1976 and rules framed thereunder were made applicable to employees of judicial department from 8th December, 1983 and it was not given retrospective effect---When impugned order, whereby petitioner was reverted was passed, Azad Jammu and Kashmir Civil Servants Act, 1976, was not applicable to petitioner---Impugned order was, therefore, not warranted by law.
(h) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)---
----S.44---Constitutional jurisdiction, exercise of---Adverse order passed against petitioner by the Government was not warranted by law---High Court was the competent forum to pass such order at relevant time---Impugned order of Government whereby petitioner was reverted to junior post was declared to have been passed without lawful authority and of no legal effect---Petitioner, however, having retired from service, he would be entitled to receive emoluments and other benefits of the post of Registrar from the date when impugned order was passed till the day when he retired.
Muhammad Hanif Khan and Shahad Ahmad for Petitioner.
Sardar Muhammad Sadiq Khan, Addl. A.-G. for Respondents.