2023 PLP (C (PLC(CS)N)

CH. MUHAMMAD IBRAHIM ZIA, CJ.

The captioned appeal by leave of the Court has been filed against the judgment of the High Court dated 29.01.2019, whereby, the writ petition filed by the appellants and proforma respondents, herein, has been dismissed.

2. The brief facts of the case are that the appellants and the proforma respondents, herein, are the permanent employees of Forest Department and working as Forest Guards in different divisions of Azad Jammu and Kashmir. According to the Azad Jammu and Kashmir Forests Department Employees Service Rules, 2013, the quota reserved for the promotion of Foresters is 50% by initial recruitment and 45% by promotion. It is the claim of the appellants that they are most senior in seniority list of Forest Guards and listed at serial Nos. 12 to

35. The official respondents against the law and rules appointed 32 Foresters but according to the departmental rules 45% quota is reserved for promotion from amongst Forest Guards as Forester. The appellants moved many applications for determination of quota but the same has not yet been determined. The basic claim of the appellants is that without determination of the promotional quota, direct appointments cannot be made. They filed a writ petition before the High Court for issuance of direction for the determination of quota. The learned High Court after necessary proceedings has dismissed the writ petition on the ground that the matter relates to terms and conditions of service and the Service Tribunal is the proper forum.

3. Ch. Muhammad Manzoor, Advocate, the learned counsel for the appellants after narration of necessary facts submitted that the impugned judgment is result of misconception of law and facts. The appellants filed the writ petition for implementation of the service rules in letter and spirit but the learned High Court while misconceiving the facts dismissed the writ petition on the sole ground that the matter relates to terms and conditions of service. Neither the appellants have prayed for determination of any terms and conditions of service nor the subject matter of the writ petition falls within the jurisdiction of the Service Tribunal. According to the constitutional provisions as well as principle of law enunciated by this Court, the Service Tribunal has exclusive jurisdiction only in the matters relating to which the service appeal is competent and in the matters in which the service appeal is not competent there is no bar for exercise of writ jurisdiction, hence the impugned judgment is not maintainable and liable to be set-aside.

4. Conversely, Mr. Muhammad Hanif Khan Minhas, Advocate, the learned counsel for the respondents opposed the appeal and submitted that the impugned judgment is in accordance with law, speaking one and well-reasoned. The appellants have got no locus standi, hence, this appeal is liable to be dismissed.

5. We have heard the learned counsel for the parties and examined the record made available. The writ petition has been dismissed on the sole point of jurisdiction, therefore, for resolution of the controversy involved the relief prayed by the appellants in the writ petition has to be considered. The appellants in the writ petition have prayed as follows:- "It is therefore, very humbly prayed on behalf of the petitioners that respondents may kindly be directed to determine the 50% quota reserved for promotion according to the departmental rules and official respondents may kindly be directed to promote the petitioners against the 50% quota for promotion. Any other relief which the petitioners are entitled may also be very kindly be granted in the interest of justice." Admittedly, relating to the service of the appellants the rules are enforced whereby 45% quota of the posts, subject-matter of this appeal, has been fixed for promotion. Thus, according to the facts and circumstances of the case, the appellants treated that the departmental rules (departmental order) are favourable to them but the same are not being implemented and they are being deprived of due promotion. According to Article 47 of the Azad Jammu and Kashmir Interim Constitution, 1974 read with section 4 of the Azad Jammu and Kashmir Service Tribunal Act, 1975, the right of appeal has been clearly provided to the civil servants against any final order of the authority aversely affecting the terms and conditions of the service but in rest of the matters neither the service appeal is provided nor the Service Tribunal is competent to issue direction for implementation of any favorable departmental order. In this context, there is a chain of authorities of this Court wherein the principle of law has been laid down. The basic one is the case reported as Ejaz Ahmad Awan and others v. Syed Manzoor Ali Shah and another 1999 PLC (C.S.) 1439, wherein it has been held that:- "If a favourable order has been passed by a departmental authority but it is not being implemented without just cause and the matter suffers from procrastination a writ, subject to just exceptions, may issue to enforce its implementation provided always that the order is valid and legally enforceable." The service rules, according to their spirit, fall within the definition of a departmental order of the authority, thus, in view of peculiar facts of this case the appellants deeming these rules favorable to them and feeling that the same are not being implemented without just cause, approached the High Court for implementation of same. In this state of affairs, the writ petition is competent and the same does not fall within the purview of terms and conditions of service relating to which any right of appeal is provided before the Service Tribunal in exclusive jurisdiction.

6. So far as the observation that the appellants have prayed for issuance of direction for promotion, is concerned; it is also misconceived. The prayed direction is subject to implementation of quota reserved for promotion and it does not mean that the High Court has to determine the suitability or right of promotion of any individual civil servant rather it is consequential relief that if the High Court issues direction to the departmental authority for implementation of the service rules relating to determination of the quota for promotion, in that case the direction for processing the case of promotion of the persons falling in the cadre has to be issued. Thus, the case law referred to in the impugned judgment is not relevant. Therefore, we are constrained to accept this appeal, set-aside the impugned judgment and remand the case to the High Court that after providing opportunity of hearing to the parties decide the writ petition on merit according to law. It is also desired that as the considerable time has already consumed, therefore, the writ petition be decided within a period of 60 days from communication of this judgment. This appeal stands accepted in the above terms with no order as to costs. ZC/85/SC(AJ&K) Case remanded.