' SARDAR SAID MUHAMMAD KHAN, CJ.---As the common question of law and face is involved in the - bove entitled appeals, we propose to dispose of the same by the single judgment.
2. The facts giving rise to Appeal No,31 of 2000 titled Naseer Ahmad Kayani and another v. Qazi Masood-ur-Rehman another are that Qazi Masood-ur-Rehman, respondent No,1, filed a writ petition in the High Court stating that he was a Senior Auditor in the Office of Accountant-General and is posted in the Locai Audit Party District Poonch. He sought a direction in terms that notifications dated 4-7-1977, 13-10-1977 and 8-4-1979 must be acted upon and to his promotion order dated 10-7-1978 must be given retrospective effect from 4-7-1973 instead of 13-10-1977. It may be pointed out that a notification was issued by the Ministry of Finance (Planning and Development Division) Pakistan on 4-7-1973 fixing certain quota according to which the posts of Senior Auditors were to be filled in; the quota for promotion on the basis of seniority-cum-fitness was enhanced from 10% to 20% vide aforesaid notification; a notification was also issued by the Government of Azad Jammu and Kashmir on 13-10-1977 whereby the quota for the promotion as Senior Auditors was enhanced as was done in Pakistan. The case of the respondent was that he was promoted to the post of Senior Auditor on 10-7-1978 with effect from 13-10-1977 while he was entitled to be promoted with effect from 4-7-1973, because vide notification dated 8-4-1979 which is marked as annexure 'RD' on the paper book, the notification dated 13-10-1977 has been given retrospective effect from 4-7-1973. The High Court dismissed the writ petition filed by respondent No,1 holding that as the matter involved in the writ petition pertained to the terms and conditions of his service, he could not be given relief in exercise of writ jurisdiction and that the writ petition was hit by laches because he filed the same after the expiry of about 22 years of his promotion.
However, despite that the High Court issued a direction to respondent No,2 to strictly act upon the notifications dated 13-10-1977 and 8-4-1979 and give appropriate relief to respondent No,1.
3. The facts of Appeal No,64 of 2000 titled Bashir Ahmad Butt and others v. Qazi Masood-ur- Rehman and another are that the aforesaid judgment of the High Court has also been challenged by Bashir Ahmad and others more or less on the same grounds which were taken in the appeal filed by Naseer Ahmad Kayani and another (Appeal No,31 of 2000). They have contended that they were senior to respondent No,1 and thus, on the basis of seniority and improvement in their qualification, were promoted as Senior Auditors by the competent authority vide order dated 21-9- 1977 while respondent No,1 was promoted on 10-7-1978, thus, they were senior to respondent No,1 but if the promotion of respondent No,1 is given retrospective effect from 4-7-1973, they would become junior to him. They further alleged that the writ petition which culminated in the impugned judgment was filed without impleading them as party and they came to know about the same only few days before filing the present appeal. Thus, they prayed that the impugned judgment may be set aside on the grounds that the writ was hit by laches, the same was incompetent because it related to the terms and conditions of service of the parties and even otherwise retrospective effect cannot be given to the promotion of respondent No,1 which would adversely affect the seniority of the appellants.
4. It has been contended by Mr. M. Tabassum Aftab Alvi, the learned counsel for the appellants, that the High Court on the one hand held that the Writ petition was not competent as the matter related to terms and conditions of service of Qazi Masood-ur-Rehman, respondent No,1, and that even otherwise the same was hit by laches but on the other hand issued an ambiguous direction to respondent No,2 to strictly act upon the notifications dated 13-10-1977 and 8-4-1979 and give appropriate relief to respondent No,! The learned counsel has argued that such a relief was not sought by respondent No,!, the same could not be given to him because the matter would again be hit by laches and the High Court has no jurisdiction in the matter according to the impugned judgment itself. The learned counsel has also argued that it is not clear from the impugned judgment as to what the High Court intended from the direction that respondent No,2 "should strictly act upon the notifications dated 13-10-1977 and 8-4-1979 and give appropriate relief to respondent No,!". However, according to the learned counsel for the appellants, it appears from the contents of the writ petition filed by respondent No,1 that he wants that his promotion may be given retrospective effect from the year 1973 in pursuance of the aforesaid notifications; the learned counsel has pointed out that the notification dated 13-10-1977 is the notification whereby additional quota for promotion as Senior Auditor was allocated by the Azad Jammu and Kashmir Government and the notification dated 8-4-1979 gives retrospective effect to the notification dated 13-10-1977 from 4-7-1973 as was in Pakistan. The learned counsel has contended that in fact the notification dated 13-10-1977 has already been acted upon in the sense that respondent No,1 was promoted from the date of the issuance of the notification dated 13-10-1977. The learned counsel has further argued that respondent No,1 has been contesting the matter of his promotion and ultimately his appeal was dismissed by the Federal Service Tribunal on 23-4-1998. Thereafter, he filed a writ petition in the High Court which he subsequently withdrew and later on he came up with the writ petition which has culminated in the impugned judgment. According to the learned counsel for the appellants, respondent No,1 has been indulging in protracted litigation with mala fide intentions and thus, his writ petition should have been dismissed on this sole ground. The learned counsel for the appellants has cited the following authorities in support of his contentions:- - ' In case reported as Kalsoom Akhtar Hamadani v. The Chairman AJ&K Council Islamabad (1994 SCR 173), it was held that there was no statutory provision either in Civil Servants Act, 1973, or Rules framed thereunder entitling a civil servant to claim antedated promotion. The reliance was placed on number of authorities of Supreme Court of Pakistan.
' In case reported as The Accountant-General and others v. Zaman Hussain Khan (1998 PLC (C.S.)
431), it has been held that the High Court has no jurisdiction to entertain writ relating to the terms and conditions of service of a civil servant and the only remedy for an aggrieved person is to approach Service Tribunal after exhausting departmental remedy; identical view was taken in case reported as Dr. Muhammad Sarwar v. Dr. Muhammad Sharif Chatter and others. 1998 PLC (C.S.) 127.
5. In reply, Mr. Imdad Ali Mallick, the learned counsel for respondent No,1, has contended that he sought relief by filing a writ petition in terms that his promotion should be given retrospective effect from 4-7-1973 because vide Government notification dated 8-4-1979 the notification issued by the Government on 13-10-1977 has been made operative from the aforesaid date i,e, 4-7-1973. The learned counsel has argued that the relief sought by the respondent is not hit by laches because respondent No,2 has not yet decided the matter of his retrospective promotion from the year 197 and his repeated denial would give fresh cause of action to respondent No,1. He has further argued that so far as the question of terms and conditions is concerned, the respondent sought relief to act upon the aforesaid Government notifications and did not seek the declaration regarding the terms and conditions of his service i,e, that respondent No,1 was entitled to retrospective promotion from the year 1973. When the learned counsel was asked that the High Court has decided both the aforesaid points against him, i,e,, that the writ was hit by laches and the matter pertained to the terms and conditions of service of respondent No,1, but he did not appeal to this Court, the learned counsel could not satisfy us that he could assail the findings of the High Court on the aforesaid points without filing an appeal. He has cited the following authorities in support of his contentions:- - ' In case reported as Khurshid-ul-Hassan v. Azad Government and another 1997 PLC (C.S.) 468, it was held that there is no fixed form for issuance of a Government Order, sometimes it is issued in one form while at another time in the other form. It was further held that it was not necessary that name of the President should be mentioned in the relevant Government Notification and that the form of the Government Order was not material rather the sanction of the authority which was competent to make order was important in view. Of the facts of tile ease.
' In case reported as Dawood Yamaha Limited v. Government of Balochistan and others PLD 1986 Quetta 148. It was held that as the matter pertained to the levy of Octroi by the Union Council concerned, it was a recurring wrong and thus it cannot be said that the writ petition was hit by laches.
' In case reported as Manzoor Ahmad v. Additional Settlement Commissioner (Lands) and others [1989 CLC 142], it was held that as the proposal for allotment of evacuee land remained pending before the competent authority for five years, the same should have been decided irrespective of the fact that the concerned claimant remained absent. Thus, the order of the allotment of proposed land was set aside and authorities were directed to allot the land to the petitioner.
' In case reported as Mian Miraj-ud-Din v. The Senior Superintendent of Police Lahore and others [PLD 1970 Lah. 569], the Additional Superintendent Police on the report of the police authority concerned opened register No,10 of the petitioner. It was held that an order opening history sheet of a citizen and keeping him under surveillance is a continuing wrong and thus the question of laches does not arise.
' In case reported as Pakistan Post Office v. Settlement Commissioner and others [1987 SCMR 1119], a distinction was drawn between the question of limitation under the Limitation Act and the laches in case of filing of writ petition. It was held that even if the order was void, the same should be challenged within a reasonable time provided the same is just and reasonable but if the same is not so, the High Court would set aside the same despite the fact that the writ petition was filed.
' In case reported as Muhammad Ramzan Ansari v. Government of Pakistan and others [1983 PLC.
(C.S.) 521, it was held that the principle of laches is not relevant where grievance is continuing wrong. The question related to the employees of National Bank with regard to ceiling of house rent.
Thus, it was held 'that denial to pay house rent at a certain rate was a continuing wrong; even if the writ petition was dismissed for laches another writ petition might be filed by the aggrieved employees.
6. The learned Advocate-General, Raja Shiraz Kayani, supported the arguments advanced on behalf of the learned counsel for the appellants.
7. We have given due consideration to the matter. As has already been pointed out that the High Court has rightly held that the writ petition by respondent No,1 was filed about 22 years after his promotion order dated 10-7-1978, which was made operative from 13-10-1977, the date when the aforesaid notification was issued by the Government of Azad Jammu and Kashmir. He subsequently challenged the seniority of some other promotees but his claim was turned down by the Federal Service Tribunal; he did not seek any relief from Federal Service Tribunal that his promotion be given retrospective effect from 4-7-1973, because 'the notification dated 13-10-1977 was given retrospective effect from the aforesaid date vide notification dated 8-4-1979. Even otherwise, the direction given by the High Court that notifications dated 13-10-1977 and 8-4-1979 should be strictly complied with and appropriate relief should be given to the petitioner is nothing but to give relief to respondent No,1 which pertained to the terms and conditions of his service; such a direction is tantamount to at usurp the jurisdiction of the Service Tribunal and is in violation of settled -principle of law that question of terms and conditions of service of civil servant cannot be made basis for obtaining the relief by invoking writ jurisdiction. Besides, the learned counsel has made a vain attempt that question of his retrospective promotion is a 'continuing wrong' because respondent No,2 has not yet rejected his claim. If this was the position then how he could have filed the writ petition seeking relief that his promotion should be given retrospective effect from 1973. In paras 7 and 8 of his writ petition he has clearly averred that the Accountant General has acted in derogation of the notifications dated 4-7-1973, 13-10-1977 and 8-4-1979 and has refused to act upon the same and to give relief to him. Therefore, the contention of the learned counsel for respondent No,1 that as the claim of respondent has not been denied, the writ was not hit by laches is fallacious. The analysis of the authorities cited by learned counsel for the respondent, referred to above, show that those are distinguishable and do not help the case of the respondent, the present case cannot be regarded to be a case of 'continuous wrong' as has been contended by the learned counsel for the respondent. The learned counsel during the course of his arguments admitted that the question of ante dated promotion of the respondent from the year 1973, is a question which relates to the terms and conditions of his service. Thus, there remains hardly any room in the arguments that despite that the High Court could give him the relief in terms which are tantamount to give retrospective effect to his promotion from 1973.
' In the light of what has been stated above, we accept the appeals, set aside the impugned judgment of the High Court and dismiss the writ petition filed by respondent No, 1 .