1993 PLP (C (PLC(CS))

BASHARAT AHMAD SHAIKH J‑‑‑The appellant herein Muhammad Latif Khan, was transferred and posted as Incharge Muzaffarabad Division of the Forest Department in place of respondent Ali Hussain Bukhari, a Deputy Conservator of Forests who was transferred to another division. The order was issued by the Government on 31st of October, 1991. The order was challenged by 18 Deputy Conservators of Forests and 22 Assistant Conservators of Forests on the ground that the appellant was not qualified to hold the post to which he had been transferred by virtue of the foresaid order of the Government. The writ petition has been accepted by a (earned Judge in the High Court and it has been ordered that Muhammad Latif Khan shall cease to hold the office mentioned above. He was also restrained from discharging the functions and dudes of the aforesaid office. In reaching the conclusion as aforesaid the High Court overruled the objection raised on behalf of the present appellant that the said Court had no jurisdiction to hear the case because the subject matter of the writ petition fell within the Purview of the Service Tribunal as being relate able to the terms and conditions of service. The appellant seeks the annulment of the judgment of the High court. The appellant does not hold any degree in Natural Sciences which is `he normal requirement for appointment as a Forest Officer, although he holds the degrees of LL. M., M.A. (Journalism), M.A. (Islamic Studies) and M.A. (political Science) appointed as Incharge of Muzaffarabad Forest Division by virtue of order under challenge before the High Court the appellant was looking after the functions of prosecuting Forest cases in different Courts at Bagh. The exact position held by the appellant is the subject of serious dispute between the parties and the result of appeal depends on this finding. Therefore, we would advert to this part of the dispute at the proper place but it may be noticed at this stage that the Government order under reference itself refers to appellant Muhammad Latif Khan as (Perokaar jungalaat)' B‑

17. The Government order may be reproduced below:‑‑ As already noted the appellant unsuccessfully contended' before the High Court that the subject‑matter of the writ petition was within the jurisdiction of the Service Tribunal and, therefore, the jurisdiction of the High Court stood completely ousted. This objection has been raised with great vehemence before us by Mr. Muhammad Akram Khan, the learned counsel who appeared before us on behalf of the appellant. According to section 47 of the Azad Jammu and Kashmir Interim Constitution Act no other Court can entertain any proceeding in respect of any matter to which the jurisdiction of the Service Tribunal extends. It is undisputed that this bar is fully applicable to the High Court even when it is acting under its constitutional jurisdiction under section 44 of the Interim Constitution Act. However, the question before us is whether the subject‑matter of the writ petition fell within the jurisdiction conferred on the Service Tribunal. In order to resolve this controversy we may advert to the relief claimed in the writ petition. The portion of the writ petition relating to relief runs as follows:‑‑ "In view of the above stated facts, it is humbly prayed that a writ of quo warranto may kindly be issued to non‑petitioners 1 and 2 to show under what authority of law they have appointed non‑petitioner No.3 as Divisional Forest Officer, Muzaffarabad and similarly a writ be issued against non‑petitioner No3 to show under what authority of law he holds the post of Divisional Forest Officer. It is also prayed that a necessary writ may kindly be issued to protect entry of non‑technical persons in regular services of Forest Department and the impugned order Annexure `D' be set aside by declaring it as illegal. It is further prayed that any other relief to which the petitioners are found entitled, may also be granted." From the foregoing extract it is clear that the writ petition which had been filed by the forty Forest Officers, who are respondents before us, was one of quo warranto and did not relate to any violation of the terms and conditions of the petitioners. While deciding this point the learned Judge in the High Court observed that under section 4 of the Service Tribunals Act an appeal can be filed by a civil servant against the final order in respect of any of the terms and conditions of his service and that the petitioner in the present case did not challenge the order under reference ran the groun4 that their terms and conditions of service lead been violated by it. We find force in this observation. The scope of an appeal before the Service Tribunal is vastly distinct axed different from the application for a writ of quo warranto envisaged by section 44 of the Interim Constitution Act. In an appeal under section 4 of the Service Tribunals Act if a civil servant is aggrieved by a final order passed by a departmental authority he can file an appeal before the Service Tribunal, but' the overriding condition is that it should relate to any of terms and conditions of that civil servant. It is implicit in an appeal before the Service Tribunal that the appellant has to seek a relief for himself. On the other hand a writ of quo warranto can be filed by any person without being aggrieved of any order. A writ of quo warranto is sought to get a public office vacated if it can be proved before the High Court that it duns being illegally occupied or usurped. During the elaborate arguments on this point Mr. Muhammad Akram Khan do not contend that the enactment of section 4 of the Service Tribunals Act has the effect of abrogating the powers of the High Court to issue a writ of quo warranto as long as section 4 is in force. We may observe that section 47 of the Interim Constitution Act does have the effect that as long as section 4 is in existence the powers under section 44 cannot be exercised by the High Court but this is subject to the condition that matter must relate to terms and conditions of the service of a civil servant who is an appellant before the Service Tribunal and seeks annulment of an order adversely affecting his service rights. The host of authorities cited by Mr. M. Akram Khan in support of his contention lay down the same proposition but do not lay down that the power of issuing a writ of quo warranto is not available to the High Court if N the appointment of a civil servant is challenged. Mr. Muhammad Akram Khan cited the following cases: Muhammad Aslam Bajwa v. Federation of Pakistan PLD 1974 Lah.

545. In this judgment a Division Bench of Lahore High Court held that on the coming into force of the Service Tribunal Act the writ petitions pertaining to the terms and conditions of service and concerned with the disciplinary action stood abated. In Mir Saddar Din v. Government of AJ&K PLD 1976 AJ&K 1, two learned Judges of the High Court dismissed a writ petition filed to challenge the retirement of a large number of civil servants on the ground that the matter related to the terms and conditions of service and after the establishment of the Service Tribunal the High Court had no jurisdiction to entertain a. writ petition on that subject. In Muhammad Hashim Khan v. The Province of Balochistan PLD 1976 Quetta 59, a large number of civil servants who had been dismissed or removed from service filed writ petition to challenge the orders passed against them. The petitions were dismissed after holding that the Service Tribunal had the exclusive jurisdiction in disciplinary matters of civil servants. Dr. Raja Manzoor Elahi v. North‑West Frontier Province PLD 1980 Pesh.

81. A writ petition was filed to challenge the retirement order of the civil servant on various grounds. It was held that the order was appealable to the Service Tribunal and the jurisdiction of all other Courts was barred. The writ petition was dismissed. In Abdul Bari v. Government of Pakistan PLD 1981 Kar. 290, several persons who had been retired from service filed writ petitions to challenge the adverse orders. The question whether the petitions could be heard by the High Court was referred to a Full Bench consisting of five Judges. After exhaustive study of case‑law the learned Judges unanimously held that the petitions which sought to challenge the orders of retirement were barred under Article 212 of the Constitution of Pakistan. Collector Central Excise v. Aslam Ali Shah PLD 1985 SC

82. Adam Ali Shah, an Inspector in the Excise Department, was charge‑sheeted. He requested for permission to be represented by a counsel which was declined. He filed a writ petition before the Lahore High Court. The High Court accepted the writ petition and held that the concerned civil servant was entitled to be represented by a counsel in disciplinary proceedings agate him. This order was set aside by the Supreme Court on the short ground that the direction given by the High Court fell within the purview of the terms‑ and conditions of service and, therefore, the High Court had no jurisdiction to entertain the question raised before it. Begum Ismat Azhar v. Punjab Government PLD 1987 Lah.

256. In this case it was held that posting and transfer is a necessary condition of service and was, therefore, outside the scope of constitutional jurisdiction of the High Court. Muhammad Ahmad v. Pakistan (1986 PLC 788). In the Accountant cadre described as Inter‑Departmental Cadre was created which adversely affected the service rights of one Muhammad Ahmad filed a writ petition in the High Court. The petition was dismissed on the ground that the relief claimed by the petitioner related to the terms and conditions over which the Service Tribunal had exclusive jurisdiction. Azad Government v. Zaman Ali Shah PLD 1991 SC (AJ&K)

57. The Azad Jammu and Kashmir High Court passed an order quashing the posting and transfer of certain Police Officers: On appeal this Court set aside the order holding that posting and transfer formed part of conditions of service and the matter related to the exclusive jurisdiction of the Service Tribunal. Ghiasul Haq v. Azad Government PLD 1980 SC (AJ&K)

5. This is leading judgment of this Court dealing with the respective jurisdictions of the High Court and the Service Tribunal. This judgment is authority for the view that the jurisdiction of the High Court is totally ousted in respect of those matters which fall within the domain of a Service Tribunal. Muhammad Sadiq Khokhar v. Engineer‑in‑Chief Pakistan Army, G.H.Q. (1985 SCMR 63). In this case it was held by the Supreme Court of Pakistan that if the suspension of a civil servant is ordered the order attains finality when it takes effect and is a final order appealable to the Service Tribunal. Consequently the High Court had no jurisdiction to entertain a v‑: ;r petition to challenge a suspension order. Coming to the merits of the case we may point out that the appellant was in the Forest Department in some different capacity when he was approved by the Public Service Commission for appointment as Sub -Divisional Forest Officer (Prosecution) somewhere towards the end of the year `

979. The relevant Government order issued on 2‑1‑1980 runs as follows:‑ Although it is established that the appellant was already serving in the Forest Department but since his appointment as Sub‑Division Forest Officer Prosecution) was made on the recommendation of Public Service Commission, it follows that it was against a post reserved for direct recruitment because in the year 1979 the Public Service Commission did not deal with the cases of promotion nor indeed the order reproduced above recites that it was an order promotion. The post against which the appellant was pointed is described as Sub‑Divisional Forest Officer (Prosecution). In 1984 the Azad Jammu and Kashmir Forest Department Service Rules 1984 we, the Azad Jammu and Kashmir Forest Department Service Rules 1984 we framed by the Government in exercise of the powers under section 23 of the Azad Jammu and Kashmir Cavil Servants Act 1976. It repealed five sets of rules which were in existence immediately before the commencement of the aforesaid Rules in relation with the service matters of the forest department accordance with these Rules, hereinafter referred to as the Rules of 19849 person can hold the post of Deputy Conservator of Forests B‑18 if he promoted "on the basis of "merit‑cum‑seniority anti fitness" from amongst the Assistant Conservators of Forests with 7 years service in the Department. It also provided therein that only that persons can become Assistant Conservation of Forest who is graduate second class in natural sciences with two year successful training from Pakistan Forest Institute Peshawar or if he holds M.Sc. Degree in Forestry. It is vehemently contended by the appellant learned counsel that the rules framed in 1984 were not applicable to the persons who were already holding posts in Forest Department. The proposition was not seriously contested by Kh. Shahad Ahmad, the learned counsel for the respondent Forest Officer although he forcefully contends that if a person is to be transferred to hold any of the posts mentioned in V ‑Rules of 1984 then he must be qualified to hold that post. He also contends that his principle was fully applicable even to posting orders for temporary period. By the appellant reliance in support of his case is placed on rule 5 Rules of 1984 and a seniority list which has been placed on the file by hit Rule 5 mentioned above provides that "the existing posts of Assistant Conservation of Forests in B-17 and Sub‑Divisional Forest Officers in B‑17 are combined and re-designated Assistant Conservators of Forest". The appellant, it is claimed, was Divisional Forest Officer when these Rule came into existence by the virtue of rule 5 he became an Assistant Conservator of forests. According to the appellant it is in consequence of rule 5 mentioned above that in the seniority list subsequently prepared by the Chief Conservator of Forests the appellant was shown as one of the Assistant Conservators of Forests B‑17 along with other Assistant Conservators of Forests include those who were petitioners before the High Court. A perusal of aforementioned seniority list shows that the appellant's name is shown at serial No.23 amongst the Assistant Conservators of Forests B‑

17. After considering the arguments advanced at the bar we are; of t view that the argument is without substance. It is correct that under rule 5, the Rules of 1984 the posts of Sub‑Divisional Forest Officers were re-designated as Assistant Conservators of Forest Officer, in his order of appointment the appellant had not been appointed simply as Sub‑Divisional Forest Officer but his designation was shown as Sub‑Divisional Forest Officer Prosecution and this is the post for which he had been approved by the Public Service Commission. It follows that the appellant was appointed to conduct Court cases on behalf of the Forest Department. It is not the appellant's case that he was performing any other function in the Forest Department at any time after his appointment as Sub‑Divisional Forest Officer (Prosecution). The Rules of 1984 did not in any way change the nature of appellant's appointment. The re -designation incorporated in rule 5 mentioned above can only be interpreted to mean that in future the post of Sub‑Divisional Forest Officer (Prosecution) would be re‑designated as Assistant Conservator Forests (Prosecution). We may also point out that in another context the appellant himself brought on record a Government order issued on 27‑6‑1989 which was to the effect that M/s Muhammad Shafi and Muhammad Yunus Foresters were, after being approved by the Selection Board, were promoted as `Perokar‑e‑Janglat' in B‑

16. One of the conditions attached to those promotions was in the following words: "The employees would not in future be eligible for promotion in any other cadre of the Forest Department except the prosecution branch." This Government order clearly demarcates the prosecution branch as distinct from other cadres of the Forest Department. That the appellant belongs to the prosecution branch is evident from his appointment order dated 31st October, 1991, which has already been noted. We have already reproduced the order by which the appellant was transferred as Incharge Muzaffarabad Division and we have noticed that it describes the appellant as `Perokar‑e‑Janglat" B‑17 Incharge (Prosecution) and not as Assistant Conservator of Forest which gives support to the conclusion to which we have reached. That being the position the mere fact that in the seniority list drawn up subsequently the appellant was 8 shown as one of the Assistant Conservators of Forests does not make any substantial difference. The list was drawn up by the Chief Conservator of Forests who thought that being an Assistant Conservator of Forests the appellant's name should be included in the seniority list of A.C.Fs. It did not bring about a change in the nature of appointment of. the appellant. We, therefore, hold that after coming into force of the Rules of 1984 the appointment held by the appellant stood re‑designated as Assistant Conservator of Forests (Prosecution) and that no other change was effected thereby. With that we pass on to the question whether the Government is authorised under section 9 of the Civil Servants Act to transfer the appellant as Incharge of the Forest division, a post which was previously held by a Deputy Conservator of Forests. Reliance was vehemently placed on section 9 of the Civil Servants Act because of the phraseology used in the Government order of 31st October that Mr. Muhammad Latif Khan's posting as Incharge Muzaffarabad division was only temporary. Section 9 of the Civil Servant, Act reads as follows:‑ Posting and Transfers.‑‑Every civil servant shall be liable try anywhere within or outside Azad Jammu and Kashmir in any post under the Government or the Council or the Federal Government of Pakistan or any Provincial Government of Pakistan, or a local authority or a Corporation or body set up or established by any such Government: Provided that, where a civil servant is required to serve in a post outside his service or cadre, his terms and conditions of service as to his pay shall not be less favourable than those to which he would have been entitled if he had been so required to serve." The phraseology employed by the legislature highlights the liability of civil servants to serve anywhere within or outside of Azad Jammu and Kashmir, but this liability also implies the corresponding authority to enforce this provision. The question is whether this authority is unfettered and this implied authority overrides all other provisions of law applicable to civil servants. Section 9 itself does not say so. On the contrary it is laid down in section 4 of the Civil Servants Act that the appointment to the civil service or civil posts shall be made in prescribed manner. The manner is laid down in rule 3 of the Civil Servants (Appointment and Conditions of Service) Rules. Rule 3 is worded as follows:‑‑ "3. (1) Appointment to posts shall be made by promotion, transfer or initial recruitment, as may be prescribed by the Government in relation to the posts in a grade from time to time. (2) Appointments by promotion or transfer shall be made in accordance with part II and by initial recruitment in accordance with Part III of these rules. (3) The appointment shall be made from among such persons possessing such qualifications and fulfilling such other conditions as may be prescribed by the Government." A perusal of sub‑rule (1) shows that which posts have to be filled up by promotion, transfer or initial recruitment as may be prescribed. The appointments by promotion or transfer have to be made in accordance with Chapter II as is laid down by sub‑rule (2) above. It as specifically laid down in sub‑rule (3) that the appointment can only be made of a person who fulfils the laid down qualifications and other conditions. It follows that if an Assistant Conservator Forests (Prosecution) has to be appointed as Assistant Conservator of Forests by transfer he must fulfil the requisite qualification, namely, that he should be at least a graduate second class in natural sciences with 2 years successful training from Pakistan Institute Peshawar. In the written statement filed by the Government and the Secretary, Forests they took the position that a person who is an Assistant Conservator of Forests can be appointed as Divisional Forest Officer. Since the appellant had not been found to be an Assistant Conservator of Forests in the general cadre it is clear that his appointment as Incharge of the Forest Division was not legally sustainable. The conclusion drawn by the High Court is, therefore, unexceptionable. The Lahore High Court also expressed the same view in Syed Sarwar Hussain v. Punjab University (1981 CLC 839) cited by Kh. Shahad Ahmad, the learned counsel for the respondent Forest Officers. The facts were that Sarwar Hussain was a Deputy Registrar of the Punjab University and he was sent on deputation in the Punjab Education Department where he was posted as Principal of a College. He challenged the order on the ground that he could not be forced to join as Principal of the College because he did not fulfil the necessary qualification for that post. It was held that although a civil servant could be transferred to any post but he could only be posted to work against a post for which he was duly qualified. Another argument advanced by the learned counsel for the appellant was that the Divisional Forest Officer is not a statutory office and, therefore, quo warranto does not lie. Leaving aside the legal aspect of the argument it is not correct to say that Divisional Forest Officer is not a statutory post. A perusal of Jammu and Kashmir Forest Act 1930 (commonly misdescribed as Regulation) shows that certain statutory functions have been assigned by the aforesaid law to the Divisional Forest Officer and certain powers have also been invested in the incumbents of that office. For instance section 6 authorises the Divisional Forest Officer to impose a collective compensation for loss caused to a forest and it places a duty on the persons residing in the concerned locality to pay the same. The same section authorises the Divisional Forest Officer to order the ejectment of a person who is found by him to have encroached upon any forest land and when such an order is passed by Divisional Forest Officer every Officer of the Police is bound to assist him. We, therefore, find no substance in the appeal but our attention has been drawn to part of the order passed by the High Court which needs to be attended to. After declaring that post held by Muhammad Latif Khan, appellant herein, shall stand vacated, the High Court also proceeded to order as follows:‑‑ " The person holding the office at the time the impugned order was issued, is allowed to occupy the office forthwith." In our view this direction does not fall within the four corners of a writ of quo warranto. This Court has held in Azad Jammu and Kashmir Government v. Kh. Noor‑ul‑Amin (1991 MLD 1190) that in a writ of quo warranto the only relief which can be given by the High Court is confined to issue an injunction not to act in the disputed office and to declare the office to be vacant. The relevant portion may be usefully reproduced:‑‑ "It is clear that while acting under sub‑clause (ii) of clause (b) above, the High Court has to confine its inquiry as to the authority of law under which the concerned person claims to hold that office. There is no other power which is conferred by this clause of the High Court. If after necessary inquiry the High Court comes to the conclusion that the respondent before it does not have the lawful authority to occupy that office the High Court can make a declaration to that effect whereupon the office so held becomes vacant. The Supreme Court of Pakistan held in Masudul Hassan v. Khadim Hussain and another PLD 1963 SC 203 that power of granting relief in proceedings of quo warranto are confined to‑‑ (a) issuing an injunction to. a person holding the office not to act therein, and (b) where necessary, to declare the office to be vacant. There is nothing in sub‑clause (ii) from which the High Court may derive the authority to travel beyond the limits as enunciated above. Even otherwise, the aforesaid direction given by the High Court amounts to posting of a particular civil servant to the post of the Divisional Forest Officer Muzaffarabad for which the necessary authority does not vest in the High Court or this Court. Consequently, the portion of the order of the High Court reproduced above shall stand vacated, ‑ With the modification indicated above we find no force in this appeal and order its dismissal. A.A./352/S.C . Appeal missed.