1. GHULAM MUSTAFA MUGHAL, J.~ Through this Constitutional petition, filed under Section 44 of the Azad Jammu -and Kashmir Interim Constitution Act, 1974, a direction is sought to. The respondents to act according to the'"Electric Inspectorate Service Rules, 1989. A declaration is also sought in the terms that proceedings initiated for promotion of respondent No. 4 as Assistant Electric Inspector by respondents Nos. 2 and 3 may be declared as void.
2. The precise facts forming the background of the supra titled writ petition are that a post of Assistant Electric Inspector (B-17) fell vacant in the Inspectorate of Electricity Department of Azad Jammu and Kashmir due to promotion of one Amir Feroz. According to the departmental rules the post is to be filed in 50% by initial requirement and 50% by promotion from amongst the Electric Sub-Inspectors (B-11), at least with 7 years service as such, or by transfer of suitable officer from the Electricity Department, It is further claimed that the basic qualification for appointment as Electric Sub- Inspector (B-11) is "Diploma as Associate Engineer in Electrical Engineering from a Government Polyphonic Institute or an equivalent Diploma or Certificate from a recognised Institute", It is further stated that respondent No.. 4 is lacking the afore-mentioned qualification and his appointment has also been made by an incompetent authority, which has not been confirmed up till now, therefore, the proceedings initiated on behalf of official respondents for promotion of respondent No. 4 are mala fide, coram non judice, ab initio void and against the departmental rules.
3. The facts stated in the writ petition have been controverted by the respondents by filing separate written statements, In written statement filed on behalf of respondent No. 4 it is alleged that as the matter pertains to the terms and conditions of service of the contesting parties who are civil servants within the meaning of Section 2(b) of the Azad Jammu and Kashmir Civil Servants Act, 1976, therefore, jurisdiction of this Court is ousted in view of the bar contained in Section 47 of Azad Jammu and Kashmir interim Constitution Act, 1974. It is . Further stated that the respondent was appointed as Electric Sub-Inspector (B1 11) on 7.10.1979 and the petitioner is junior to him. It is also claimed that his basic appointment order stood confirmed according to the provisions contained in Rule 7(1) of the Azad Jammu and Kashmir Civil Servants (Appointments and Conditions of Service) Rules, 1977. Almost similar points have been raised in the written statement filed on behalf of other respondents.
4. The petitioner has also filed replication wherein it is alleged that no final order has been passed by the competent authority, therefore, jurisdiction of this Court is not ousted as has been claimed by the non-petitioner. It is further " claimed that basic appointment ,of respondent No. 4 was on contract basis, therefore, it cannot be said that respondent No. 4 was a civil servant and is now eligible for promotion even if it is assumed that he is senior to the petitioner.
5. Raja Sadaqat Hussain, the learned Advocate appearing for the petitioner, inter alia, contended that respondent No. 4 is lacking the basic qualification for appointment as is visualised in Electric Inspectorate Service Rules, therefore, his appointment is void ab initio and the working paper submitted by respondents Nos. 2 and 3 for his promotion to the respective Selection Board-being against the rules is without lawful authority. The learned Advocate maintained that as the working paper does not fall within the ambit of final order, therefore,, no appeal is competent before the Azad Jammu and. Kashmir Service Tribunal and this Court has jurisdiction to resolve the controversy. The learned Advocate further contended that the jurisdiction of Service Tribunal is very limited, and no direction can be issued or given by the Service Tribunal as has been prayed for in the instant writ petition.
6. Mr. M. Tabassum Aftab Alvi, the learned Advocate appearing for the other side contended that a writ of certiorari has been filed for quashment of the working paper submitted by respondents - Nos. 2 and 3 for the purpose of promotion of respondent No. 4 herein. The matter, according to the learned Advocate, admittedly relates to the terms and conditions of service of the contesting civil servants, therefore, it cannot be said that this Court has jurisdiction ;n view of bar contained in Section 47 of Azad Jammu and Kashmir Interim Constitution Act, 1974. The learned Advocate maintained that even a letter addressed by the departmental authorities, which affects the rights of a civil servant, can be challenged before the Azad Jammu and Kashmir Service Tribunal. The learned Advocate maintained that the basic appointment order of respondent No. 4, ae well as the order of awarding selection grade and his promotion in grade 17 have not been challenged in the petition, therefore, no writ can be issued even otherwise. The learned Advocate strenuously argued that direction can only be given to the Board who has to recommend or judge the suitability of the contesting civil servants, which has not been arrayed as party, therefore, the petition merits dismissal on this sole ground. The learned Advocate also contended that even a void order was liable to be challenged within reasonable time failing which the petitioner now is estopped by his conduct. The learned Advocate support his submission by placing reliance on the following cases:-
(i) "Mirza Lai Hussain v. Custodian of Evacuee Property and others" (1 9-92 SCR 214);
(ii) "Chaudhry Muhammad Zaman v. Azad Govt, and 4 others" (1996 SCR 171);
(iii) "Muhammad Arshad Saeed, DIG Police v. Govt. Of Pakistan through' Secretary Establishment Division, Islamabad and 29 others" (1994 SCM R 1033);
(iv) "Muhammad Arshad Khan Tehsildar District Bagh and others v. Azad Govt, and others" (PLJ 2000 SC (AJK) 88);
(v) "Ejaz Ahmed Awan and 5 others, v. Syed Manzoor AH Shah and another" (1999 SCR 204);
(vi) "Qazi Uaqat AH Qureshi v. Hafiz Muhammad Ishaque and 3 others" (1997 SCR 239); and (vii)
7. "Musa Javed Chauhan v. Secretary, Ministry of Foreign Affairs and 2 others" (1983 PLC (C.S.) 673).
8. Mr. Noorullah Qureshi, the learned Advocate appearing for official respondents, has adopted the arguments of Mr. M. Tabassum Aftab Alvi and requested for dismissal of the writ petition on the grounds listed in the comments and written statement filed on behalf of official respondents.
9. I have heard the learned Advocates for the parties and given my anxious thought to the record available with the writ petition, In the instant writ' petition a direction is sought to the respondents to act according to the Electric Inspectorate Service Rules, 1989. Under Section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, this Court besides other, is vested with the following powers:- "(i) directing a person performing functions in connection with the affairs of Azad Jammu and Kashmir or local authority to refrain from doing that which he is not permitted by law to do, or to do that which he is required by law to do; or (ii) declaring that any act done or proceedings taken by a person performing functions in connection with the affairs of the State or a local authority has been done or taken without lawful authority, and is of no legal effect."
10. The afore-mentioned direction is subject to two conditions. Firstly, the applicant should be an aggrieved party; and secondly the non-availability of adequate and alternate remedy, In the instant case no material has been placed on record on the basis of which it can be said that respondents are acting in derogation to the rules. Reference to a letter dated 22.5.2004 has been made in the pleadings, which is as under:- [(urdu text)] A perusal of the above letter reveals that it neither affects the rights of the petitioner in any manner nor determines the controversy finally; rather the particulars of the petitioner herein as well as respondent No. 4 have been requisitioned by the competent authority for the purpose of further process. The contention of the learned Advocate for the respondents that this order is not final is correct as for invoking the jurisdiction of Service Tribunal there should be a final order or an order which at least affects the terms and conditions of a civil servant. The superior Courts have treated even a letter, policy or a notification as a final order for the purpose of appeal before Service Tribunal, which has an affect on the terms and conditions of service of a civil servant. A reference can be made to I.A. Sharwani's case (1991 SCM R 1041) wherein it was opined that if an order is passed by a departmental authority affecting the terms and conditions of service of a civil servant, then the Service Tribunal is a proper forum for adjudication of the matter and for that purpose even a notification or vires of some rules can be treated as final order within the meaning of Section 4 of Pakistan Service Tribunals Act, 1973. The relevant observation of the apex Court is recorded in para. 10 at page 1063 of the report, which is reproduced as under:-- "10. From the above-cited cases, it is evident that it has been consistently held inter alia by this Court that a civil servant if is aggrieved by a final order, whether original or appellate, passed by a departmental authority in respect of his terms and conditions, his remedy, if any, is by way of an appeal before the Service Tribunal even where the case involves vires of a particular Service Rule or a notification or the question, whether an accused civil servant can claim the right to be represented by a counsel before the Enquiry Officer. We are inclined to hold that if a statutory rule or a notification adversely affects the terms and conditions of a civil servant, the same can be treated as an order in terms of sub-section (1) of Section 4 of the Act in Order to file an appeal before the Service Tribunal." f In a case titled "Muhammad, Arshad Saeed, DIG Police v. Govt, of Pakistan" (1994 SCM R 10331), the same principle has been reiterated. At page 1038 of the report the apex Court of Pakistan opined as under: "8... The Tribunal was in error in holding that the policy letter of 10.2.1980 did not amount to an order or a departmental order or a final order. An order for the purposes of Service Tribunals Act can have many forms, It may be a general order, It may be a particular order directed against^ an individual, It may be a decision of a particular grievance or an order refusing to redress a grievance. All such orders, if they affect the terms and conditions of the service of the employee would qualify as departmental orders ex facie issued by the authority within the department empowered to do so. Hence, such orders would be amendable to appellate jurisdiction of the Service Tribunal." A similar proposition has also been considered by the apex Court of Azad Jammu and Kashmir in Muhammad Irshad Khan's case (PLJ 2000 (SC) AJK 88). The relevant observation is recorded in para. 9, which is to the following effect:- "9. The next question which needs resolution is as to whether the Service Tribunal was justified to dismiss appeals Nos. 902 and 903 of 1995 against the aforesaid letter/order dated 8.12.1994. It may be stated that it was specifically contended before the Service Tribunal that the appellants had no knowledge of the letter/order dated 8.12.1994 and that the same was never communicated to them. Thus, they prayed for the condonation of the delay, if any. The aforesaid contention was supported by affidavits but the Service Tribunal did not mention in the impugned j dement as to whether the explanation for condoning the delay given by the appellants, herein, were accepted or not. The Tribunal, simply recorded in the impugned judgment that the appeals were time-barred and that even otherwise the. Letter/order was not appealable as being merely an explanation. So far as the competency of the appeals was concerned, it may be stated that even a letter can be appealed against despite the fact that the same has not been couched as ah order as has been held in the case reported as Muhammad Arshad Saeed, DIG Police v. Govt, of Pakistan through Secretary, Establishment Division, Islamabad (1994 SCM R 1033), referred to above. The fact that the explanation furnished by the Board of Revenue was accepted by the Accounts Department clearly manifests that the said letter/order adversely affected the terms and conditions of service of the appellants, herein. Therefore, we have no doubt that the Service Tribunal was not justified in dismissing the Appeals Nos. 902 and 903 of 1995 against the letter/order dated 8.12.1994."
11. A reference can also be made to PLJ 1980 SC (AJK) 5 and PLJ 1995 AJK (HC)
13. Thus, in light of these precedents it can safely be concluded, that an order which determines the rights of the parties conclusively, is final but where further steps are required in the matter the order cannot be treated so, as has been opined in H. M. Rizvi's case (PLJ 1982 SC 36). The relevant observation of the apex Court is as under:- "Right of appeal has been conferred by subsection (1) of Section 4 only against a 'final order whether original or appellate'. A final order has the distinction of determining the rights of the parties. Where any further step is necessary to perfect an order, in this case the disposal of the objections received or finalization of the provisional seniority list, the order cannot be taken to be final. An order may be final, if it determines the rights of the parties, concludes the controversy so far as a particular authority or forum is concerned notwithstanding that such an order may be open to challenge in appeal etc. This aspect of the concept of the finality of an order has been taken care of by adding the words 'whether original or appellate' in the enacted law itself."
12. In view of the above discussion it cannot be saic that the letter dated 22.5.2004 is a final order, hence is appealable before the Service . Tribunal, Thus the objection regarding the maintainability of the present writ petition on the ground of bar contained in Section 47 of the Azad Jammu and Kashmir Interirm -Constitution Act, 1974, read with Section 4 of Azad Jammu and Kashmir Service Tribunals Act, 1975 raised on behalf of Mr. M. Tabassum Aftab Alvi, the learned Advocate for respondent No. 4, is herey repelled. As bio data of authority who has yet etc. Appreciate the matter in light of the relevant rules therefore, the petitioner is at liberty to submit his view point before the authority/Selection Board. After a final order he can challenge the same before Azad Jammy. And Kashmir Service Tribunal in view of dictum laic down by the apex Court in Ejaz Ahmed Awan's case (19S9 SCR 204). This Court cannot direct the Selection Board to consider the case of the petitioner for the reason that respective Selection Board has not been arrayed in line of the respondents. So far as the question of basic appointment of respondent No. 4 is concerned that can only be challenged through appropriate proceeding. ' The petitioner has neither challenged the basic order of respondent No. 4 nor the order of selection grade. Similarly,-the appointment o1 respondent No. 4 on current-charge basis, as Electric Sub-Inspector (B-T1) dated 7.10.1979 has also not been challenged, therefore, this petition to this extent has no merits.
13. In light of the foregoing discussion finding no force in this petition it is dismissed with no order as to costs.