Kh. Shahad Ahmed, J.--By our leave the correctness of a judgment recorded by the Azad Jammu & Kashmir Service Tribunal on 3.4.2007 has been assailed through the instant Civil Appeal No,61/07 whereby the Service Tribunal of Azad Jammu & Kashmir has dismissed the Service Appeal No, 119/07 filed by the appellant, herein. The petition for leave to appeal was allowed by one of us on 6.6.2007 and after completion of the case in the Registry Office the arguments were heard on 15.11.2007.
2. The precise facts of the case as reveal from the record are that the present appellant, who at the relevant time was working as Prosecuting Deputy Superintendent of Police (PDSP) was promoted to the post of Assistant Inspector General of Police (Traffic) on current-charge basis and his services were transferred to the Intelligence Bureau (IB) of Pakistan, where he had to work as Deputy Director. His promotion was ordered against the post which had to fall vacant on 26.6.1999 on account of retirement of one Raja Rafique Arif, Assistant Inspector General of Police (Traffic). This order was issued on 18.5.1999, a facsimile of the said Government order is attached with the paper- book. Without assigning any reason this notification dated 18.5.1999 was cancelled from the date of its issuance only after one day on 19.5.1999. It, however, appears from record that notification dated 18.5.1999 was cancelled through notification dated 19.5.1999 on the ground that the earlier notification in respect of promotion of the appellant was to be issued by the Secretary Services & General Administration Department whereas the same was issued from the Office of Home Secretary. The order dated 19.5.1999 was challenged through a writ petition before the High Court which was finally accepted and the respondents, herein, were directed to process the file and issue necessary notification as per approval of the Prime Minister of Azad Jammu & Kashmir. It appears from record that the Government of Pakistan sent a requisition to the Azad Jammu & Kashmir Government for deployment of Azad Jammu & Kashmir Police Officers with the Intelligence Bureau of Pakistan. The officers of the rank of Superintendent of Police in the Azad Jammu & Kashmir Police Service refused to join IB, whereupon the appellant and some others, who were qualified to be promoted to the rank of Superintendent of Police, consented for their transfer and posting in Pakistan subject to the condition of one step promotion to BPS-18. The notification dated 18.5.1999 was issued on this ground although admittedly the appellant was promoted against a clear vacancy. The judgment of the High Court passed in Writ Petition No,242/2000 on 7.6.2001 titled Ch. Muhammad Arif, PDSP & 2 others vs. Secretary Services & General Administration Department & 2 others was assailed through Petition for Leave to Appeal No, 121/2001 before the Supreme Court but the same was dismissed by a learned Judge of this Court on 12.9.2001. It appears that the respondents-Government functionaries ultimately issued a notification on 29.10.2005 whereby the appellant, herein, was promoted from the post of PDSP to that of Superintendent of Police on officiating basis. On 1.3.2007 through another notification the original order issued in favour of appellant on 18.5.1999 was restored with retrospective effect subject to the condition that this order shall not affect the service rights of any senior Police Officer. Aggrieved by the condition imposed through notification dated 1.3.2007 the appellant, herein, filed Service Appeal No, 199/07 in the Service Tribunal on 2.4.2007 pleading therein that the condition imposed by the Government and its functionaries that retrospective promotion shall not adversely affect the service rights of any senior Police Officer is foreign to the law and rules regulating the appointment and promotion of a civil servant. The Service Tribunal after hearing the appellant dismissed the appeal in limine on the ground that the provisions of Section 6(6) of the Azad Jammu & Kashmir Civil Servants Act, 1976, which deals with the confirmation of civil servants against a post, shall take effect from the date of availability of permanent vacancy. While dealing with the subject of seniority of the appellant, the Service Tribunal held that seniority in a grade has to take effect from the date of regular appointment to a post in that grade. In the estimation of the Service Tribunal retrospective promotion doesn't create a right of seniority in a civil servant. When the case came up before this Court through PLA No,50/07, one of us (the 'Honourable Chief Justice) granted leave to appeal to consider the points raised in the petition for leave to appeal and to interpret the provisions of Section 6(6) and Section 7 of the Azad Jammu & Kashmir Civil Servants Act, 1976.
3. Mr. Ashfaque Hussain Kiani, the learned counsel for the appellant, submitted that the condition incorporated and included in the notification dated 1.3.2007 is not in consonance with law regulating the promotion of a civil servant whether retrospectively or otherwise. The condition incorporated in the notification is superfluous and irrelevant, submitted the learned counsel. He further submitted that the law is very clear so far as effect of promotion and seniority from back date is concentred. According to the learned counsel the referred condition has not been imposed so far as the other promotees are concerned, therefore, the appellant has illegally been discriminated, which treatment is prohibited by law and depricated by the Courts of law.
4. After going through the record made available, the law and rules governing the subject controversy, it reveals that the respondent-Government has not filed concise statement nor appeared in the Court when the arguments were heard. The appeal was set down ex-parte against non-appearing Respondents No, 1 to 3 vide order dated 6.7.2007 by the Registrar of this Court and till the date of arguments i,e, 23.11.2007 the respondents-official functionaries of the Government didn't appear. Consequently arguments were heard ex-parte and the appeal is hereby disposed of.
5. After going through the available record and the version of the respondents placed before the Service Tribunal, admittedly the appellant and 2 others, namely Muhammad Feroze Khan, PDSP, and . Ajab Khan Nawabi, PDSP, were promoted as SP (B-18) on current-charge basis vide order dated. 18.5.1999. As is evident from the notification dated 18.5.1999 the appellant being qualified for promotion to the post of Superintendent of Police was promoted against a clear vacancy which had to fall vacant on retirement of one Raja Rafique Arif on 26.6.1999, the appellant was promoted as Assistant Inspector General of Police (B-18) and he was deputed to work as Deputy Director Intelligence Bureau of Pakistan. On the very next day i,e, 19.5.1999 the earlier notification dated 18.5.1999 was cancelled without assigning any reason. It, however, reveals from record that notification dated 18.5.1999 was cancelled on the ground that the same had to be issued from the Services & General Administration Department whereas it was issued from the Office of Home Secretary. The appellant and two others filed a writ petition in the High Court challenging the validity of the order dated 19.5.1999 and after detailed examination of the respective contentions of the incumbents including the appellant and the Government functionaries the respondents before the High Court which included Secretary Services & General Administration Department Azad Jammu & Kashmir and Home Secretary/Chief Secretary Azad Government of the State of Jammu & Kashmir, the writ petition was accepted and the official respondents were directed to process the file and issue necessary notification as per approval of the Prime Minister of Azad Jammu & Kashmir. The Government of Azad Jammu & Kashmir and its functionaries assailed the judgment of the High Court dated 7.6.2001 before this Court but a learned Judge of this Court who was subsequently elevated to the most prestigious Office of the Judiciary and unfortunately died in boots, dismissed the petition for leave to appeal filed by the Government. It also reveals from record that the order dated 19.5.1999 was issued without information to or approval of the Prime Minister, which could only be ordered by the Prime Minister on a note filed by the subordinate functionaries or on a review or representation by an aggrieved person. When the Prime Minister was apprised of the facts, he ordered restoration of order dated 18.5.1999 which amounts to cancellation of the order dated 19.5.1999. When the subordinate functionaries didn't act according to the direction of the Prime Minister, a writ petition was filed by the promotees including the appellant, herein. The High Court while accepting the writ petition directed the official functionaries to implement the order of the Prime Minister. Neither the order of the Prime Minister nor the direction of the High Court was followed, executed or implemented and in spite of the fact that the appellant continuously followed the subordinate functionaries of the Government, needful was not done for a period of 7 years which' smacks of some mala fide on the part of the concerned functionaries of the Government and when finally the notification of promotion of the appellant was issued an attempt was made to frustrate and avoid implementation of the order/writ of the High Court by imposing a condition that the promotion of the appellant shall not affect seniority rights of others which means in clear terms that the appellant has not been promoted from 18.5.1999 when he being qualified was promoted to an available vacancy in BPS-18. Thus, entertaining no doubt in our mind that the notification dated 18.5.1999 and the order of the High Court dated 7.6.2001 have not been implemented in letters and spirit.
6. A writ of mandamus is a writ of very high nature and is used where there is no other remedy and address to a person or corporation commanding the performance of some legal duty of a public nature. It enforces some private rights when withheld by a Public Office and noncompliance is a contempt of Court. In the instant case it appears that attempts have been made to avoid implementation of the order of the High Court by procrastination for years together and when left with no other way,-out the notification has been issued with a condition that it shall not affect seniority of the officers who have been promoted meanwhile, thus delaying the implementation of the order of High Court through another method. Implementation and execution of the orders of the Courts and decrees of the Civil Courts are usually delayed and very purpose of the judgment of the Court is defeated by procrastinating the matter or by resorting to the technicalities and the holder of an order is sent to face perplexity of technicalities and as has been held by the Supreme Court of Pakistan in a case reported as Jameela Pir Bukhsh & others vs. Appellate Authority & others [2003 SCM R 1524] the real agony of a litigant starts after he gets a favourable order from the Court or a decree is issued in his favour. In para 14 of the judgment overall position of the judicial system and onwards difficulties, which a litigant has to face, have been summarized:-- "14. It is often said that delay in justice amounts to denial of justice. There is no fault with the judicial system. It is its administration which causes that much delay. Litigation has increased manifold but the manpower to tackle the same does not commensurate with the same. Perplexity of technicalities is perhaps one of the major reasons for this delay. Even petty matters linger on for decades to reach their logical conclusions. Such an approach creates great hurdle in the way of the oppressed to get justice within a reasonable time which naturally results in generating frustrations and despondency against the System. The Courts must not shatter the trust reposed by general public in them by involving themselves in procedural technicalities. Their prime duty is to administer substantial justice which should not only be done but also seen' to have been done at the earliest. At this juncture it would be appropriate to reproduce the observations of the Judicial Committee of Privy Council made as far back as in the year 1872 in the case titled The General Manager of the Raj Durbhunga, under the Court of Wards v. Maharajah Coomar Ramaput Singh (14 MIA 605 = 17 WR 459 = 19 BLRPC 294 = 2 Suth. PCJ 575 = 3 Sar. PCJ 117) respecting the plight of litigants in this part of the world which are as under:-- "The Right Hon. Sir James Colvile.--These proceedings certainly illustrate what was said by Mr. Doyne and what has been often stated before, that the difficulties of a litigant in India begin when he has obtained a decree. When, whoever, the actual question which is at issue between the appellant and the respondent on this appeal is eliminated from the rest of the record, it does not appear to their Lordships to present any very great difficulty."
7. On the basis of above, we entertain no doubt in our mind that the condition imposed by the respondents in the order recorded on 1.3.2007 is not only unwarranted under law but is based on mala fide of the concerned functionaries of the Government. The judgment recorded by the High Court has to be implemented in letters and spirit and a relief granted to the party cannot be denied by procrastinating the implementation or interpreting a provision in a manner to deny the adjudicated right of a litigant. The appellant was promoted to the post through order dated 18.5.1999 against a clear vacancy. This order was cancelled on a technical ground that it should have been issued by the Secretary Services & General Administration Department whereas the same was issued from the Office of Home Secretary. Even if this version of the respondents was correct it was negligence of the official functionaries for which the appellant and all those who filed writ petition in the High Court could not be penalized. Thus, leaving all other points raised by the appellant the condition imposed in the notification by Azad Jammu & Kashmir Government on 1.3.2007 is declared as illegal and ultra vires. The appeal is accepted and disposed of in the above- reflected terms.