Full Judgment Text & Judicial Ruling

2005 P L C (C

2005 P L C (C.S.) 991

[Supreme Court (AJ&K)]

Before Syed Manzoor Hussain Gilani and Chaudhary Muhammad Taj, JJ

CHAUDHARY MUHAMMAD TAJ, DEPUTY CONTROLLER, BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, MIRPUR (AK)

Versus

TASAWAR HUSSAIN SULEHRIA, RESEARCH OFFICER BOARD OF INTERMEDIATE AND SECONDARY EDUCATION MIRPUR (AK)

Civil Appeal No.32 of 2004, decided on 18th March, 2005.

(On appeal from the judgment of the High Court dated 19-12-2003 in Writ Petition No.47 of 2002).

Azad Jammu and Kashmir Civil Servants Act (VI of 1976)------

---S. 8---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.42---Promotion---Appellant was promoted as Deputy Controller on recommendation of Selection Committee, but respondent filed a writ petition challenging appellant's promotion---High Court having accepted said writ petition, appellant had filed appeal to Supreme Court against judgment of High Court in which he raised certain points---Appellant while addressing arguments did not press other points, except that direction of High Court with regard to respondent to consider him for the post of Deputy Controller, was absolutely against law for the reasons that it was not held by High Court that said respondent was eligible to be considered for promotion---Since there was not much dispute regarding contentions of parties, it was held that direction given by High Court in respect of respondent to be considered for the post of Deputy Controller was unwarranted and was not maintainable and was set aside in appeal---Rest of the judgment would remain intact whereby order of promotion had been set aside and same was held to be made by the concerned authorities---Authorities would proceed in accordance with law and consider all those who were eligible for promotion.

Ch. Muhammad Ibrahim Zia, Advocate for Appellant.

Mujahid Hussain Naqvi, Advocate for Respondent No. 1.

Date of hearing: 17th March, 2005.

JUDGMENT

CHAUDHARY MUHAMMAD TAJ, J.---This appeal, by leave, is directed against the judgment passed by the High Court on 19-12-2003 whereby the writ petition was accepted.

2. The facts are that the appellant was promoted as Deputy Controller on the recommendation of Selection Committee through an order passed on 18-4-2002. Respondent No.1 filed a writ petition challenging the appellant's promotion. The learned Single Judge in the High Court accepted the writ petition. Hence, this appeal.

3. Ch. Muhammad Ibrahim Zia, the learned counsel representing the appellant, raised following points in support of the appeal:--

(i) that the learned Judge in the High Court has passed the order against the provisions of Act and calendar of the Board where the respondent-Chairperson Board of Intermediate and Secondary Education can issue the order subject to confirmation of the Board, therefore, the observation of the High Court was against law;

(ii) that the appellant and respondent No.1 belong to different cadres, therefore, their seniority is not common hence the respondent was not an aggrieved person to file the writ petition as such the same is not tenable; and

(iii) that the observation of the learned Judge in the High Court that the respondent should be considered for promotion as Deputy Controller runs counter to the law as he cannot be considered for such post, therefore direction is not sustainable.

4. After addressing the arguments at some length, the learned counsel representing the appellant, did not press other points except that the direction of the High Court with regard to the respondent to consider him for the post of Deputy Controller was absolutely against law for the reasons that it was not held by the learned Judge that the said respondent was eligible to be considered for promotion.

5. Mr. Mujahid Hussain Naqvi, the learned counsel who appeared on behalf of the respondent, in the aforesaid circumstances, did not 'oppose the contention of the learned counsel for the appellant. However, he submitted that the matter may be left to the AJK Board of Intermediate and Secondary Education (respondent No.2) to consider all those who are eligible for promotion according to law.

6. We have heard the learned counsel for the parties and also gone through the record. Since there is not much dispute so far as the contentions of the learned counsel representing the parties while addressing the arguments are concerned, therefore, keeping in view the respective arguments, we hold that the direction given by the High Court in respect of respondent No.1 to be considered for the post of Deputy Controller is unwarranted which is not maintainable as such is set aside by accepting the appeal; Rest of the judgment shall remain intact whereby the order of promotion has been set aside and the same was held to be made by the AJK Board of Intermediate and Secondary Education, respondent No.2. Respondents Nos.2 to 4, herein, shall proceed in this regard in accordance with law and consider all those who are eligible for promotion.

H.B.T./150/SC(AJ&K) Order accordingly.

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