' MUHAMMAD YUNUS SURAKHVI, J---This appeal, by way of leave of the Court, has been directed against the judgment passed by the High Court on October 31, 2001, whereby the writ petition filed by the appellant herein was dismissed in limine.
2. The necessary facts, giving rise to the present appeal, precisely stated, are that the appellant herein joined her service as Senior Teacheress on August 26, 1974 and passed her B.Ed. Examination on December 11,1976. It was disclosed that vide judgment of the Supreme Court reported as Azad Government and another v. Zia-ud-Din Abdul Hamid and others-(1993 SCR 15f) it was held that a Senior Teacher would be entitled to get his running grade from the date of compartment in B.Ed.; accordingly seniority lists of Senior Teachers, male and female, were prepared as such. The seniority list is attached with the writ petition as annexure 'PA-1'.
3. This Court vide its judgment reported as Ejaz Ahmed Awan and 5 others v. Syed Manzoor Ali Shah and another 1999 PLC (C.S.) 1439 held that the seniority of Senior Teachers shall be reckoned from the date of passing of B.Ed. Examination and not from the date of compartment in B.Ed.
Examination. Respondent No,4 in compliance of the verdict of the Court dated 1-3-1999 issued Notification No, ST/Litigation/Appeals/ 2777-91/99 dated 27-8-1999 directing all the Directors Public Instructions of Education to take steps to implement the Notification, copy of the same is attached with the writ petition as annexure 'PC'. In another judgment of this Court titled Nisar Akhtar v.
Secretary Education and others (Appeal No,4 of 1998 decided on 10-6-1999) it was laid down as under:- "The simple point is that this Court has authoritatively laid down the law that no civil servant can hold a post in his/her own pay scale."
' The copy of the above judgment is attached with the writ petition as annexure 'PD'. Respondent No,4 issued another Notification No,SE/Litigation/2189-22-4/99 dated 28-6-1999 in which it was again reiterated that seniority of all cadres shall be prepared in accordance with the decisions of the Courts. Copy of the Notification dated 28-6-1999 is attached with the writ petition as annexure 'PE'.
4. In the judgment of this Court titled Ejaz Ahmed Awan and 5 others v. Syed Manzoor Ali Shah and another 1999 PLC (C.S.) 1439 it was held that the seniority of Senior Teachers shall be reckoned from the date of passing of B.Ed. Examination. The respondents issued the Notification dated 27-8- 1999 in this regard which has been placed on record as annexure 'PB' at pages 16 and 17 of the paper book. After the above decision of this Court, respondents issued another Notification No Admin. E-I(17) Part-II/Gazetted 3/92 dated 17-6-1999, whereby the officers who had passed the B.Ed., examination after the appellant, were promoted in B-19, as such necessary direction was sought by the appellant against the respondents for implementation of the judgment of the Supreme Court in letters and spirit.
5. The High Court vide its impugned order observed that the appellant surrendered her right of seniority to avoid her transfer from Muzaffarabad. She also filed two appeals before the Service Tribunal; out of them one was dismissed for having been filed by an incompetent person and the other on merits. It was further observed by the High Court that the appellant has no cause of action to agitiate the matter through writ petition on the basis of judgment passed by the Supreme Court as she is not entitled to any relief after voluntarily foregoing her right. The High Court in support of its findings placed reliance on a case reported as Maj. Shujaat Ali v. Mst. Surayya Begum (PLD 1978 SC (AJ&K) 118).
6. In support of appeal it was vehemently contended by Mr. Mujahid Hussain Naqvi, the learned counsel for the appellant, that vide the further Notification of respondents the seniority list was not prepared according to the decision of the Supreme Court. The learned counsel contended that respondent No,5 without complying with the direction of the Court dated 1-3-1999 that seniority should be prepared according to date of passing B.Ed. Examination, has submitted a proposal to respondent No,4 for promotion from B-18 to B-19 of female officers of the cadre of appellant vide his letter dated 26-7-2001. The learned counsel contended that the appellant required the Chairman of Selection Board not to consider the case of promotion of female officers for B-18 to B- 19 until the undisputed seniority list is prepared in compliance with the order of the Supreme Court.
The respondents, according to the learned counsel, have issued a fraudulent seniority list of female officers of grade B-18 on 8-8-2001 which has not been prepared according to the direction of the Supreme Court. In the disputed seniority list there is no column of passing B.Ed. Examination therefore, this seniority list cannot be made basis for grant of B-19 to female officers by the Selection Board. The learned 'counsel further submitted that the Chairman of Selection Board is not competent to consider any case of promotion unless working paper is accompanied by an undisputed seniority list as directed vide the Government Order dated 20-6-1983. The appellant is an aggrieved person who has passed B.Ed. Examination earlier than many of those who had passed. B.Ed. Examination later and also by compartment having been promoted earlier. The appellant, according to the learned counsel, has maliciously been deprived of the benefit of judicial pronouncement of the apex Court of the country. The learned counsel in support of his contentions placed reliance on Tahir-un-Nisa v. Imrana Rafeeq and 5 others 1999 PLC (C.S.) 991, Ejaz Ahmed Awan and 5 others v. Syed Manzoor Ali Shah and another 1999 PLC (C.S.) 1439; Mahmood Akhtar Kiani v. Azad jammu and Kashmir Govt. And 3 others (1998 SCR 310), Sardar Muhammad Latif Khan and others v. Ch. Muhammad Latif and another 1999 PLC (C.S.) 69 and Habibullah Ghannaie v. Wajahat Rashid Baig and 3 others 1999 PLC (C.S.) 615. The learned counsel for the appellant also placed reliance on section 8 of the AJ&K Civil Servants Act, 1976 read with rule 7 of the AJ&K Civil Servants (Appointment and Conditions of Service) Rules, 1977.
7. On the other hand Raja Ibrar Hussain, the learned Advocate-General, appearing on behalf of the respondents, submitted that the appellant herself surrendered her seniority as she was to be transferred to another' place from Muzaffarabad but she refused to go there. The learned counsel contended that the impugned judgment of the High Court suffered from no illegality or infirmity.
8. After hearing the learned counsel for the parties and perusing the relevant record including the disputed seniority list, it is clear that in the column of educational qualification, the same has been left blank by the concerned authorities. This shows that the disputed seniority list has been prepared in complete defiance and violation of the order of this Court. If the appellant had refused to accept the transfer order, her seniority could not be disturbed merely by her refusal to join some other place on account of her transfer. Under section 9 of the AJ&K Civil Servants Act, 1976, a civil servant can be transferred anywhere and if he/she refused to join his/her duty at the place where he/she was transferred, he/she is liable to be proceeded against under the E&D, rules but his/her seniority cannot be disturbed in an unlawful manner. The respondents despite the direction of this Court failed to prepare the seniority list in accordance with the dictum laid down by this Court.
Thus, they flagrantly violated the order of the Court for which they are prima facie liable to be proceeded against for committing the contempt of Court by violating the order of this Court.
9. A perusal of the relief claimed in the writ petition annexure PD' would clearly reveal that the appellant had prayed for the issuance of a direction by the High Court for a writ of mandamus in the name of respondents to implement the Notification No,ST/Litigation/Appeals/ 2777-91/1999 dated 27-8-1999 annexure 'PB' issued in compliance with the judgment of this Court dated 1-3-1999 in true tune and spirits as the respondents were legally obliged to do so and nothing more was demanded of the learned High Court. The High Court thus failed to appreciate the matter in its true perspective and traveled beyond the scope of writ petition as well as the sphere of jurisdiction by dilating upon the issues detailed in the last two paragraphs at page 3 of the impugned order due to which reason the order dated 31-10-2001 is unsustainable in law. The High Court, in our view, wrongly observed that the appellant had no cause of action to agitate the matter through the writ petition on the basis of the judgment passed by this Court in a case titled Maj. Shujaat Ali v. Mst.
Surayya Begum (PLD 1978 SC (AJ&K) 118) and that she is not an aggrieved person as well as she voluntarily had foregone her right. The High Court has misinterpreted the law and misapplied the authority, referred to above, as the same has no application in the case of appellant because the facts of that case were altogether different and the same could by no stretch of imagination be imported and attracted to apply to the appellant's case. It is to be appreciated that in Shujaat Ali's case, Syed Badi-uz-Zaman Shah, the father of the petitioner therein, had himself invited the Chairman of the authority to cancel his priority of eligibility of allotment due to which reason the Supreme Court had verdicted that both Syed Badi-uz-Zaman Shah and his son could not be termed as aggrieved persons entitled to invoke the writ jurisdiction of the High Court, but no such situation was available in the case of the appellant as there was no Government order or Notification or any other material on record available from which it could be ascertained or even inferred that the appellant had voluntarily surrendered or foregone her right of seniority due to which reason it could be said with certainty, with all respect to the High Court, that the writ petition filed by the appellant was dismissed on mere flimsy and artificial grounds.
' In the light of what has been stated above, the appeal is accepted and the impugned judgment of the High Court dated 31-10-2001 is set aside and the disputed seniority list dated 8-6-2001 dispatched on 8-8-2001 is also set at naught. The writ petition filed by appellant stands admitted for regular hearing and the case is remanded to the High Court to proceed in accordance with law as directed by this Court. Respondents Nos.1 to 6 prima facie being guilty of violating the order of this Court are issued notices to explain as to why the contempt of the Court proceedings may not be initiated against them. A separate file shall be prepared by the office and notices shall be issued to respondents to file their objections in the matter of contempt, if any, as to why the contempt of Court proceedings should not be initiated against them for violating the order of the Court. The file of contempt of Court shall be placed before the Court on 22-10-2002.