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Petitioner: ABDUL QAYYUM VS Respondent: AZAD JAMMU AND KASHMIR GOVERNMENT
1998 P L C (C
1998 P L C (C.S.) 1321
[Azad Jammu & Kashmir High Court)
Before Syed Manzoor Hussain Gillani, J
Kh. ABDUL QAYYUM and others
versus
AZAD JAMMU AND KASHMIR GOVERNMENT through Chief Secretary, Muzaffarabad and others
Writ Petitions Nos. 29, 30, of 1995 and 31 of 1997, decided on 7th January, 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---Powers and functions of Service Tribunal---Legislature had conferred extensive power upon Service Tribunal to deal with all the matters relating to terms and conditions of the civil servants in the service of Government where civil servant was aggrieved of an order adversely affecting his service-- Special forum of the Tribunal was meant to facilitate, expedite and consolidate matters relating to civil servants so that they were relieved of the burden of the technicalities of the Civil Courts, including High Court as far as the procedural aspects of cases before ordinary Courts were concerned.
Azad Jammu and Kashmir Government v. Zaman Ali Shah and others PLD 1991 SC (AJ&K) 57; Accountant-General and others v. Zaman Hussain Khan 1998 PLC (C.S.) 431 and Muhammad Latif Khan v. Sarwar Hussain and others 1995 PLC (C.S.) 182 ref.
(b) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)---
----Ss. 44 & 47---Azad Jammu and Kashmir Service Tribunal Act (XXII of 1975), S. 4---Azad Jammu and Kashmir Civil Servants Act, 1976, S.21-- Jurisdiction of Service Tribunal---Constitutional jurisdiction of High Court, exercise of---Existence of sine qua non for invoking jurisdiction of Service Tribunal, was the existence of an adverse order, having the effect of adversely affecting the terms and conditions of civil servant and his being aggrieved of that order---Unless there was a specific order adversely affecting the civil servant and he was found aggrieved, jurisdiction of Service Tribunal could not be invoked and in those matters jurisdiction of Civil Courts, High Court, would remain intact---While examining the legality of adverse order, Service Tribunal could strike down the order or a rule, having the effect of adversely affecting the terms and conditions of the civil servant, it could issue directions of the appropriate nature to dilute the adverse effect of impugned order but when a Departmental Authority would not act under law or rule, prolong or procrastinate matters, authority of High Court would remain intact under S.44 of Azad Jammu and Kashmir Interim Constitution Act, 1974 to issue a direction to Authority to act in accordance with law and rule---Where vested rights of a civil servant were likely to be adversely effected against law or rule by any proposed threatened action of Departmental Authority, High Court would intervene under S. 44 of Azad Jammu and Kashmir Interim Constitution Act, 1974 by issuing writ of prohibition---Petitioner/civil servant being aggrieved of procrastinating attitude and conduct of respondent Authorities in not deciding his representation, had rightly invoked jurisdiction of High Court for a direction and in doing so, had rightly put to challenge provisions of law barring remedy.
Farooq Ahmed Khan v. Shaukat Jan Buchh 1998 PLC (C.S.) 425 and Azad Jammu and Kashmir University v. Muhammad Malik and others 1998 CLC 783 ref.
(c) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)--
----S. 47---Azad Jammu and Kashmir Civil Servants Act, 1976, S. 21---Azad Jammu and Kashmir Service Tribunal Act (XXII of 1975), S. 4---Azad Jammu and Kashmir Service Appeal Rules, 1992---Right of appeal, review or representation---Exercise of---Limitation---Provisions of S. 21 of Azad Jammu and Kashmir Civil Servants Act, 1976, were regulatory and remedial in nature and an aggrieved civil servant was granted a right of appeal, review or representation through its provisions before Departmental Authority-- Provisions of S. 21 of Azad Jammu and Kashmir Civil Servants Act, 1976 had prescribed period of limitation for Departmental remedy and further had extended remedy by guaranteeing the right of representation against an adverse order, if the right of review or appeal was not provided under rules---Provisions of S. 4 of Service Tribunal Act had conferred a right of appeal before Service Tribunal, after availing Departmental remedy as visualised by S. 21 of Azad Jammu and Kashmir Civil Servants Act, 1976-- Different and distinct periods of limitation were provided under the provisions of Azad Jammu and Kashmir Service Tribunal Act, 1975 and Azad Jammu and Kashmir Civil Servants Act, 1976 for remedy before Service Tribunal and Departmental Authority---Remedy under S. 21 of Azad Jammu and Kashmir Civil Servants Act, 1976 was an administrative or departmental remedy, while under S. 4 of Azad Jammu and Kashmir Service Tribunal Act, 1975 was judicial one---Remedy under S. 21 of Azad Jammu and Kashmir Civil Servants Act, 1976 being not qualified while same being qualified under S.4 of Azad Jammu and Kashmir Service Tribunal Act, 1975, no conflict seemed between S. 21 of Azad Jammu and Kashmir Civil Servants Act, 1976 and Azad Jammu and Kashmir Appeal Rules, 1992 with S.4 of Azad Jammu and Kashmir Service Tribunal Act, 1975 or S.47 of Azad Jammu and Kashmir, Interim Constitution Act, 1974.
Asif Majid Khan and 3 others v. Tahir Ayyub Abbasi 1994 PLC (C.S.) 1514 and Atta Muhammad Qureshi v. The Settlement Commissioner, Lahore Division PLD 1971 SC 61 ref.
(d) 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 and function of Service Tribunal---Commanding nature of proviso (a) to S. 4 of Azad Jammu and Kashmir Service Tribunal Act. 1975, pointed that remedy from Service Tribunal could not be obtained nor could jurisdiction of Service Tribunal be invoked, unless rigorous provisions of Departmental appeal, review or representation were resorted to and not only that one had to wait for 90 days after filing such appeal, review or representation before preferring an appeal to Service Tribunal---Functioning of Service Tribunal in circumstances was made dependent upon order of Appellate Authority---Provisos (a) & (b) of S. 4 of Azad Jammu and Kashmir Service Tribunal Act, 1975 not only ran counter to subsection (1) of S.4 of Azad Jammu and Kashmir Service Tribunal Act, 1975 but to the spirit of S.47 of Azad Jammu and Kashmir Interim Constitution Act, 1974 and the purpose underlying creation of Special Tribunal---Where there was a wrong there was a remedy and once a person was wronged, his remedy could not be barred, limited, abridged, curtailed or subjected to such conditions which amounted to frustrating remedy or making it impossible---Principle of law that justice should not only be done, but must appear to have been done, would be negated if speedy and expeditious remedy was barred-- Provisions of law restoring, prohibiting, curtailing, barring or subjecting the right of appeal to conditions were unconstitutional and un-Islamic.
Shabir Ahmed v. Azad Government and another 1997 PLC (C.S.) 478; Ch. Muhammad Hussain v. Azad Government 1997 PLC (C.S.) 1047; Registrar, Supreme Court of Pakistan v. Qazi Wali Muhammad 1997 SCMR 141; Pakistan through Secretary, Ministry of Defence v. The General Public PLD 1989 SC 6; Military Estate Officer v. Assistant Commissioner/Collector 1997 CLC 556; Messrs Chanab Cement Product (Pvt.) Ltd. v. Banking Tribunal, Lahore PLD 1996 Lah. 672; State v. Manzar Masud 1981 PCr.LJ 661; Nisar Ahmed v. State 1982 PCr.LJ 1287; Referring Authority v. Sardar Sikandar Hayat Khan PLD 1982 SC (AJ&K) 112 and Chief Secretary/Referring Authority, Azad Jammu and Kashmir Government v. Sardar Muhammad Abdul Qayyum Khan PLD 1983 SC(AJ&K) 95 ref
Ghulam Mustafa Mughal for Petitioner (in Petitions Nos. 29 and 30 of 1995).
Ashfaque Hussain Kiani for Petitioner (in Petition No. 276 of 1997).
Advocate- General and Additional Advocate-General for Respondents.
ORDER
The above-referred Constitutional petitions involve common points of law and in Petition No. 29 of 1995 a specific declaration is also sought. In view of commonality of points involved, the petitions are heard and decided together by the proposed order.
2. Tile brief facts agitated through Petitions Nos. 29 and 30 of 1995 are that the petitioner was Headmaster in the Azad Kashmir Government Education Department when he was transferred and posted in the Agro- technical Centre managed and run by the Federal Government. The institution was taken over by Azad Kashmir Government in 1979 through Notification dated 11-4-1979, wherein it was provided that till the new rules are framed for the purpose, the petitioner and others in the same cadre will be governed by the same seniority as they had. before their posting in the. Agro-technical Centre. The petitioner filed an application before the competent Authority for inclusion of his name in the seniority list in the Education Department on 8-5-1989. The application of the petitioner remained indisposed till the filing of the writ petition. The petitioner alleges that a similar petition filed by Sardar Khurshid Khan on 8-12-1990 had been decide,' by the competent Authority on 3-11-1993. According to the petitioner the respondent No.1 being the authority in the case soft the petitioner is bound to dispose of the petition filed by the petitioner and withholding the disposal of the petition tantamounts to failure in his duty to do what the respondent under law is obliged to do. The petitioner seeks a direction for disposal of his petition filed on 8-5-1989.
3. In the other petition filed by the petitioner, he has, reiterating the same facts, challenged the provisions of section 21 of the Civil Servants Act, 1976 and the provisos attached to section 4 of the Service Tribunal Act, 1975, besides the Service Appeal Rules, 1992. The petitioner in Petition No. 276 of 1997 also calls in question the constitutionality of the provisos (a) and (b) of section 4 of the Service Tribunal Act, 1975.
4. I have heard the learned counsel for the parties The learned counsel for the petitioners and Advocate-General have submitted the written arguments as well. The main thrust of the arguments submitted in writing by the learned counsel for the petitioners and as argued at Bar is that provisos (a) and (b) of section 4 of the Service Tribunal Act are contrary to section 47 of the Constitution as they practically make an appeal impossible before the Service Tribunal and the relief to which an aggrieved civil servant is entitled is frustrated at least for 90 to 120 days. It further appears from the arguments that the aggrieved civil servant is put at the mercy of the same authority which has passed the adverse order against him to deal with his case and thus, reaffirm the order already passed against him. The arguments further reveal that provisos referred above practically endeavour to perpetuate injustice by not only making a redress impossible but also by prohibiting the judicial remedy for at least 90 days. The provisions of section 21 of the Civil Servants Act, 1976 are attacked as being against the Constitution on the ground that they subject the jurisdiction of the Tribunal to the rules framed under the Act regulating the appeal, representation etc.
The Additional Advocate-General in his written arguments has contended that alternate remedy of appeal, review and representation is provided to the aggrieved civil servant under section 21 of the Civil Servants Act and under section 4 of the Service Tribunal Act, a civil servant is obliged to avail the alternate remedy before invoking the jurisdiction of the Tribunal. In the presence of the alternate remedy, the provisos of section 4 of the Service Tribunal Act cannot be said to be discriminatory or against the Constitution simply for the reason that the remedy is not adequate. It is her contended that petitioner Abdul Qayyum should have filed appeal before the Tribunal after 90 days of presentation of representation on failure of the authority to decide the same.
5. For having a true perception of the proposition falling for determination in the case, provisions of section 21 of the Azad Jammu and Kashmir Civil Servants Act, 1976, provisos (a) and (b) of section 4 of the Jammu and Kashmir Service Tribunal Act, 1975 and section 47 of the 3d Jammu and Kashmir Interim Constitution Act, 1974, may be reduced as under:--
Section 21 of Azad Jammu and Kashmir Civil Servants Act, 1976.
(1) Right of appeal or representation.---(1) Where a right to prefer an appeal or apply for review in respect of any order relating to the terms and conditions of his service is allowed to a civil servant by any rules applicable to him such appeal or application shall, except as may otherwise be prescribed, be made within sixty days of the communication to him of such order.
(2) Where no provision for appeal or review exists in the rules in respect of any order, a civil servant aggrieved by any such order may, except where such order is made by the Government, within sixty days of the communication to him of such order, make a representation against it to the authority next above the authority which made the order.
Section 4 of the Azad Jammu and Kashmir Service Tribunal Act, 1975.
Appeal to Tribunals. ---(I) Any civil servant aggrieved by any final order, whether original or appellate, made by a departmental authority, in respect of any of the terms and conditions of his service, may, within thirty days of the communication of such order to him or within six months of the establishment of the appropriate Tribunal, whichever is later, prefer an appeal to the Tribunal:
Provided that;
(a) Where an appeal, review or representation to a departmental authority is provided under the Azad Jammu and Kashmir Civil Servants Act, 1976 or any rules, against any such order, no appeal shall lie to a Tribunal unless the aggrieved civil servant has preferred an appeal or an application for review or representation to such departmental authority and a period of ninety days has elapsed from the date on which such appeal, application or representation was so preferred;
(b) no appeal shall lie to a Tribunal against an order or decision of a departmental authority determining the fitness or otherwise of a person to be appointed or to hold a particular post or to be promoted to a higher grade; and
Section 47 of the Azad Jammu and Kashmir Interim Constitution Act, 1974.
(1) Administrative Courts and Tribunals. ---(I) Notwithstanding anything hereinbefore contained, the council in respect of matters to which its executive authority extends, and the Assembly in respect of matters to which the executive authority of the Government extends, may by Act provide for the establishment of one or more Administrative Courts or Tribunals to exercise exclusive jurisdiction in respect of--
(a) Matters relating to the terms and conditions of persons who are or have been in the service of Azad Jammu and Kashmir including disciplinary matters;
(b) [ ..]
(c) [ ..]
(2) Notwithstanding anything hereinbefore contained, where any Administrative Court or Tribunal is established under subsection (1), no other Court shall grant an injunction, make any order or entertain any proceeding in respect of any matter to which the jurisdiction of such Administrative Court or Tribunal extends and all proceedings in respect of any such matter which may be pending before such other Court immediately before the establishment of the Administrative Court or Tribunal shall abate on such establishment.
(3) An appeal to the (Supreme Court of Azad Jammu and Kashmir) from a judgment, decree, order or sentence of an Administrative Court or Tribunal shall lie only if the (Supreme Court of Azad Jammu and Kashmir) being satisfied, that the case involves a substantial question of law of public importance, grants leave to appeal.
6. The Constitution under its section 47, authorises the Legislature i.e. Council and Assembly to establish Administrative Courts or Tribunals for exercising the exclusive jurisdiction with respect to the matters referred in sub-clause (a), (b) and (c) of this section. The Legislature has established the Service Tribunal in Azad Kashmir under Service Tribunal Act. 1975 to exercise jurisdiction regarding matters relating to the terms and conditions of service to respect of persons in the service of Azad Jammu and Kashmir employed in connection with the affairs of the Government. The Supreme Court of Azad Jammu and Kashmir in the case Azad Jammu and Kashmir Government v. Zaman Ali Shah and others reported as PLD 1991 SC (AJ&K) 57 has held that all the matters contained in Chapter 11 of the Civil Servants Act relate to terms and conditions of civil servant. It is held in para.8 that:--
"Under section 4 of the Azad Jammu and Kashmir Service Tribunal Act the Service Tribunall has been vested with exclusive jurisdiction to hear appeals against final orders in respect of terms and conditions of service. Terms and conditions of civil servants are large in number and so scattered that it is not easy to summarise them but the plain fact is that some of them can be easily found in the Civil Servants Act in Chapter II. The title of chapter II is 'Terms and conditions of service of civil servants'. Section 3 which is the first section in the Chapter lays down as follows.
The terms and conditions of service of a civil servant shall be as provided in this Act and the rules."
7. It is again held in the Accountant-General and others v. Zaman Hussain Khan (1998 PLC (C.S.) 431) at pages 273 and 274 that;
"The matters which are included in Chapter II are appointment probation, confirmation, seniority promotion, posting. transfer, termination of service, retirement from service, removal from service, reversion to lower grade or service, re-employment, conduct, efficiency and discipline, pay, leave, pension, gratuity, provident fund and group insurance. The authorities who are competent to pass appropriate orders in respect of terms and conditions have been specified under different rules and delegation orders. Similarly the authorities competent to award penalties are specified in the Civil Servants (Efficiency and Discipline) Rules. The 'authorised officers' have been vested with authority to impose minor penalties while major penalties have been reserved for 'the authority'. Every authority who can pass an order in respect of any of these terms and conditions is a departmental authority within the meaning of explanation appended to section 4 of the Service Tribunal Act. Therefore, if an order has been passed by any of these authorities appeal would lie to the Service Tribunal. If an authority transgresses its jurisdiction and passes an order without jurisdiction or imposes a major penalty which cannot be imposed by him, it will be a good ground on which an appeal before the Service Tribunal can be based."
8. The Legislature has conferred extensive power upon the Service Tribunal to deal with all the matters relating to terms and conditions of service of the employees in the service of the Government where an employee is aggrieved of an order affecting adversely his service. The special forum of the Tribunal is meant to facilitate, expedite and consolidate the matters relating to the civil servants so that they are relieved of the burden of the technicalities of the Civil Courts, including High Court as for as the procedural aspect of the cases before the ordinary Courts are concerned. The Supreme Court in the case of "Accountant-General v. Zaman Hussain Khan (1998 PLC (C. S.) 4311" has held as Another important aspect of the matter is that powers exercised by the Service Tribunal are much wider than the powers which are exercisable by the High Court under the writ jurisdiction. It is my considered view that although certain unnecessary restrictions and technicalities are attached to the exercise of power by the Service Tribunal, the Tribunal is possessed with powers which are much wider than those exercisable by a High Court under writ jurisdiction. The role of the High Court under the supervisory jurisdiction is limited and relief can be transposed only if the order passed in respect of a civil servant suffers from such patent illegality that it can be called an order without lawful authority and of no legal effect. On the other hand the Service Tribunal can set aside or variant order passed by any departmental authority on entirely different grounds which admittedly cover wide range. Similarly question of fact can rarely be gone into by the High Court which are open to adjudication by a Service Tribunal. Thus, it is not understandable as to why supervisory jurisdiction of the High Court over the appellate jurisdiction of the Service Tribunal should be preferred by a civil servant. The law-maker has provided the civil servant with new and adequate remedy which he could not avail of prior to the enactment of the Azad Jammu and Kashmir Interim Constitution Act, 1974.
9. Similarly in the case of Muhammad Latif Khan v. Sarwar Hussain and others (1995 SCR 171) it is held;
"The fact of the matter is that the Tribunal is possessed with powers which are much wider than those exercisable by the High Court under writ jurisdiction. The role of the High Court under the supervisory jurisdiction is limited and relief can be granted only if the order passed suffers from such patent illegality that it can be called an order without lawful authority and of no legal effect. On the other hand the Service Tribunal can set aside or vary an order passed by any departmental authority on entirely different grounds which admittedly cover wider range. Similarly the questions of fact can rarely be gone into by the High Court which are open to adjudication by the Service Tribunal. So, the result is that the jurisdiction of the High Court stands totally ousted and a writ petition cannot be entertained."
10. It is for the above purpose that the jurisdiction of all other Courts is excluded in matters under section 47 of the Constitution where the Tribunal is authorised to adjudicate. The exclusion of jurisdiction in those matters is absolute and final and so is held by the Supreme Court in the cases referred above.
11. Sine qua non for invoking the jurisdiction of the Tribunal is the existence of an adverse order, having the effect of adversely affecting the terms and conditions of the civil servant and his being aggrieved of the order, which in other words means that, unless there is a specific order adversely affecting the civil servant and he is found aggrieved, the jurisdiction of the Tribunal cannot be invoked and in those matters the jurisdiction of the Civil Courts i.e. High Court remains in tact. While examining the legality of an adverse order, the Service Tribunal can strike down the order or a rule, having the effect of adversely affecting the terms and conditions of the civil servant, it can issue directions of the appropriate nature to dilute the adverse effect of the impugned order. But when a departmental authority does not act under law or rule, prolongs or procrastinates the matters, the authority of the High Court remains in tact under section 44 of the Constitution to issue a direction to the authority to act in accordance with the law and rule and so is held by the Supreme Court in the case of "Farooq Ahmed Khan v. Shaukat Jan Buchh (1998 PLC (C.S.) 425). Similarly where the vested rights of a civil servant are likely to be adversely effected against law or rule by any proposed or threatened action of the departmental authority, the High Court can intervene under section 44 by issuing a writ of prohibition and so is held by the Supreme Court in the case of "Azad Jammu and Kashmir University v. Muhammad Malik and others" (1998 CLC 783).
12. Petitioner Abdul Qayyum being aggrieved of the procrastinating attitude and conduct of the respondents in not deciding his representation, has rightly invoked the jurisdiction of the High Court for a direction and in doing so, he has rightly put to challenge the provisions of the law barring remedy.
13. Reverting to the main thrust of the petitioners grievance, I will first dilate upon the provision of section 21 of the Civil Servants Act, 1976 and Service Appeal Rule of 1992 .
14. The provisions of section 21 are regulatory aid remedial in nature and an aggrieved civil servant is granted a right of appeal, review or representation through the provisions before the departmental authority. The provisions of the section prescribe the period of limitation for departmental remedy and further extend the remedy by guaranteeing the right of representation against an adverse order, if the right of review or appeal is not provided under rules, while…
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