1. ' MUHAMMAD REAZ AKHTAR CHAUDHRY, J---This writ petition is addressed under section 44 of the AJ&K Interim Constitution Act, 1974.
2. ' The succinct facts forming the background of instant petition, as stated in it, are that petitioners were inducted into the service of AJ&K as Section Officers on the recommendations of Public Service Commission, vide Government notification dated 30-6-1999 and 12-11-2002 respectively.
3. The Government promulgated the AJ&K Deputy Secretaries Secretariat Recruitment Rules, 1878 on 29-7-1978 (hereinafter to be referred as Rules, 1978). According to rule 5 of the Rules, 1978:-- "not more than 40% posts of Deputy Secretaries shall be filled by selection on merit with particular reference to their fitness or higher responsibilities from amongst the members of AJ&K Secretariat (Section Officers) service and the remaining 40% posts shall be filled in by transfer of suitable officers from 'technical department of Government."
4. ' The non-petitioners are not following the aforesaid rule 5 and are promoting the Deputy Secretaries on the basis of seniority-cumfitness, while it was incumbent upon the non-petitioners to follow the aforesaid rule. Through instant writ petition, it has been craved by the petitioners that a writ of mandamus may be issued against the non-petitioner and they may be directed to act upon the Rules, 1978 with a declaration that the posts of the Deputy Secretaries shall be filled in by selection on merit through PSC and not by promotion on the basis of seniority-cum-fitness.
5. Parawise comments were sent for which have been filed by the non-petitioners. Arguments have been heard.
6. ' Mr. M. Tabasum Aftab Alvi, the learned counsel for the petitioners argued that Rules have been enacted and in rule 5, it has been clearly provided that promotion to the post of Deputy Secretary shall be made through selection on merit with particular reference to their fitness for higher responsibilities from amongst the members of AJ&K Secretariat Service, but non-petitioners are not acting upon the aforesaid rules. He further submitted that it was enjoined upon the non- petitioners to follow the aforesaid rules.
7. ' While controverting the arguments of the learned counsel for the petitioners, Mr. Abdur Rashid Abbasi, the learned counsel for the non- petitioners submitted that subject matter pertains to the terms and conditions of service and an appeal can be filed before the Service Tribunal, therefore, present writ petition is not maintainable. The learned Advocate was confronted that when no adverse order has been passed against the petitioners, then how they can file an appeal before the Service Tribunal? The learned counsel submitted that although no order has been passed, but they have to wait. When any order of promotion will be passed, then, petitioners can file an appeal before the Service Tribunal, therefore, this writ petition is not maintainable. The learned Advocate referred 1999 PLC (C.S.) 1439, in support of his contention.
8. ' We replying the aforesaid arguments of the learned counsel for the non-petitioners, the learned counsel for the petitioners contended that an appeal before the Service Tribunal can be filed when final order is passed by the departmental authority. No order has been passed. The petitioners through this petition want that the rules should be implemented and there is no provision under which a petition can be filed before the Service Tribunal for implementation of rules, therefore, this writ petition is maintainable.
9. ' I have heard the learned counsel for the parties and perused the documents appended with the petition.
10. ' Present writ petition has been filed by the petitioners for implementation of rule 5 of the Rules, 1978. The petitioners want that their promotion should be made on the basis of selection on merit.
11. Their grievance is that non-petitioners have no jurisdiction to promote any person on the basis of seniority-cum-fitness. Although in this respect, he referred rule 5 of the Rules, 1978, but the basic dispute between the parties is regarding the promotion which is provided in second chapter of the Civil Servants Act,. Which pertains to the terms and conditions of service. Promotion is one of the terms and conditions of service. Through this petition, the petitioners have craved that promotion should be made according to rule 5 of the Rules, 1978, ' Now the question emerges that when there is no provision for filing an appeal before the Service Tribunal for implementation of rules, then writ petition is maintainable or not?
12. ' Although there is no provision under which a petition can be filed before the service tribunal for implementation of rules, but it has been held by the Supreme Court of AJ&K in 1999 SCR 204 that where in case no final order has been passed, the concerned civil servant should wait till passing of such order, then he can challenge it before the Service Tribunal, instead of approaching the High Court for declaration or injunction, regarding the matter which falls within the purview of terms and conditions of his service e.g. Seniority, promotion etc. The supreme Court has clearly held that where any order is to be passed regarding the terms and conditions of the service and if the order is not passed by the authority, the concerned person should wait for the order. After passing of such order, he should file an appeal before the Service Tribunal, instead of approaching the High Court for declaration or injunction regarding the seniority, promotion and posting etc. For having proper perception, I would like to reproduce the findings of the Supreme Court recorded in 1999 PLC (C.S.) 1439, which are as under:-- "However, following broad principles are laid down for guidance:--
(1) if an adverse order has been passed by a departmental authority, it can only be challenged by filing appeal before the Service Tribunal to the total exclusion of the jurisdiction of the High Court.
(2) 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.
(3) Principle laid down in No,2 above would not apply if the previous order is being reconsidered or is being recalled in which case reasonable time should be allowed for the reconsideration and final disposal of the matter. In such cases, High Court cannot issue a direction to the relevant departmental authorities not to withdraw or amend the order sought to be implemented through the writ petition.
(4) If a final order has not been passed the concerned civil servant should wait till passing of such order and then challenge it before the Service Tribunal instead of approaching the High Court for a declaration or injunction regarding a matter which falls within the ambit of terms and conditions of his service e.g. Seniority, promotion, posting etc."
13. ' Now in the light of the aforesaid dictum of the Supreme Court, the petitioners have to wait for an order passed for the promotion of any person derogatory to rule 5 of the Rules, 1978. When any such order is passed, then they can file an appeal before the Service Tribunal where they can claim promotion on the basis of rules. Therefore, this writ petition is not maintainable as such, the same is hereby dismissed in limine.