1. GHULAM MUSTAFA MUGHAL, J.--- Through this petition filed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, a direction is sought to the respondents to consider the case of the petitioner for notional promotion to the post of S.S.P/A.I.G. (B-19).
2. ' The relevant and necessary facts for disposal of the petition are that petitioner, herein, stood retired from police service of Azad Jammu and Kashmir, after attaining the age of superannuation vide Government Notification dated 3-4-2006. His case is that a working paper for promotion against the two posts, fell vacant due to demise of Muhammad Mumtaz Khan, AIG Legal, and Ch. Sabir Hussain S.S.P, was sent to the respective Selection Board on 25-9-2006. Besides, petitioner herein, the names of four other police officers were included in the said working paper for consideration. However, they were not fulfilling the required length of service. It is claimed by him that at the relevant time he was the only candidate who was fulfilling the required length of service as well as other eligibility and fitness for promotion in B-19 but unfortunately, his case was not considered and he stood retired on 18-10-2006. On 20-4-2007, Muhammad Yaseen Qureshi and Khalid Mehmood Chauhan were promoted on acting charge basis, on the basis of the said working paper. It is alleged by him that he was discriminated; hence, a direction may be issued to the respondents to consider his case for promotion after retirement.
3. ' Respondents have contested the petition by filing written statement. It is alleged in the written statement that the petitioner is not an aggrieved person and grievance agitated through the petition falls in the ambit of terms and conditions of service, therefore, this Court has no jurisdiction to issue any direction. It is further stated that the petitioner was bound to challenge the promotion of Muhammad Yaseen and another, which has not been done by him therefore, now he cannot claim any right, because the matter has become past and closed transaction. It is further alleged by them that under Rule 10-A of the Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977, a civil servant who is otherwise eligible for promotion but lacking the required length of service, could be promoted on acting charge basis and nothing has been done illegal by the respondents.
4. ' Sardar Shahid Hamid, the learned Advocate for the petitioner, inter alia, argued that the right to consider for further promotion stood accrued to the petitioner on 25-9-2006 when his name was included in the relevant working paper and was sent to the respective Selection Board. He argued that the respective Selection Board did not meet in a reasonable time and meanwhile, the petitioner stood retired on 18-10-2006. The petitioner has a right to be considered for further promotion because he was the only eligible candidate in the panel. He further argued that the petitioner has been discriminated and deprived of a lawful accrued right, therefore, is entitled to the same relief as has been granted to Abdul Khaliq, retired Director/Secretary, Mohtasib. In this regard, reliance was placed upon Notification dated 20-4-2007. The learned Advocate also contended that when a person is in possession of relevant qualification and has been deprived of the same through bureaucratic tricks, he could be given relief by issuing direction. In support of his submission, he placed reliance on following unreported judgments of this Court and apex Court of Azad Jammu and Kashmir:--- (1). Petition No,8 of 2003 titled Sardar Muhammad Shafi D.I.-G., Police (Reid.) v. Azad Government, decided on 23-9-2003, (2) Civil PLA No,144 of 2004 titled Azad Government and 4 others v. Raja Sultan Zamurd Khan, decided on 8-2-2005, (3) Ch. Sarfraz Ali Khan v. Azad Government Petition No,416 of 2003 decided on 30-9-2004. (4) Syed Zahoor Hussain Shah v. Azad Government and others Petition No,215 of 2003 decided on 11-9-2003.
5. ' In all the aforestated cases, relief was granted to the petitioners, therein, after their retirement on the basis of rules of law laid down in Muhammad Anwar's case decided on 6-6-2002, wherein, a direction was issued by this Court to amend the Notification conferring the benefits on the petitioner, therein, from the same date when his counterpart was benefited in the Punjab Province.
6. Raja Gul Majeed Khan, the learned Advocate-General, vehemently opposed the grant of petition on the ground that the grievance voiced through the instant petition relates to the terms and conditions of service of the petitioner, herein, and proper forum for adjudication of the same is Azad Jammu and Kashmir Service Tribunal and jurisdiction of this Court stands ousted under section 47 of the Azad Jammu and Kashmir interim Constitution Act, 1974. He argued that petitioner was not entitled to be considered because he stood retired when the respective Selection Board met for the purpose. The learned Advocate-General also argued that it was enjoined upon the petitioner to challenge the promotion of the officers who have been promoted. He has not challenged their promotion orders nor they have been impleaded by him in the petition as party, therefore, no order can be passed in their absence.
7. ' I have heard the learned Advocates for the parties and given my anxious thought to the controversy involved in the case.
8. First of all, I would like to attend the objection of the learned Advocate-General, regarding the jurisdiction of this Court. No doubt, section 47 of the Interim Constitution Act, 1974, postulates that where any Administrative Court or Tribunal is established in light of the command of subsection (1) of section 47, no other Court shall grant an injunction, make any order to entertain any proceeding in respect of any matter to which the jurisdiction of such Administrative Court or Tribunal extends.
9. For carrying out the purpose of section 47, Azad Jammu and Kashmir Service Tribunals Act, 1975, has been enacted. A perusal of this Act reveals that the jurisdiction conferred on this Court under section 44 has not been given to the Service Tribunal, therefore, ouster of the jurisdiction in toto cannot be accepted. The ouster of jurisdiction of this Court can be pressed only to the extent of those matters, which are in exclusive jurisdiction of the Service Tribunal. The Service Tribunal has not been vested with power to issue writs of mandamus quo warranto and prohibition therefore, it cannot be said that aforesaid power of this Court conferred by Supreme law of the land have been taken away by the establishment of the Service Tribunal. In Mst. Zubbaida Begum v. Azad Government of the State of Jammu and Kashmir through Chief Secretary Muzaffarabad and four others 1998 PLC (C.S.) 292, the apex Court of Azad Jammu and Kashmir has observed that powers to issue direction, and order in the nature of quo warranto remained unaffected by promulgation of the Azad Jammu and Kashmir Service Tribunals Act, 1975. The proposition was again considered in a case titled Azad Jammu and Kashmir Government and others v. Syed Shakir Shah 2002 PLC (C.S.) 821 by the apex Court of Azad Jammu and Kashmir, wherein it was observed as under:--- "Writ of mandamus is issued to compel holder of public office to act in discharge of legal duty.
10. Such powers have been given to the High Court which it can exercise under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974. The writ jurisdiction available to the High Court in Azad Kashmir is no doubt a discretionary jurisdiction which is to be exercised within the limits laid down by the Interim Constitution Act, 1974. This is clear from the opening words 'subject to this Act' used in section 44 of the Interim Constitution Act. These words definitely mean that prohibition contained in any other provisions of the Interim Constitution Act, 1974, like subsection (2) of section 47 of the Act shall not be violated the High Court while exercising writ jurisdiction. Under section 47 of the Interim Constitution Act, 1974 both Council and Legislative Assembly of Azad Jammu and Kashmir have got jurisdictional competence to legislate for and establish one or more Administrative Tribunals or Courts in respect of matters to which their jurisdiction is recognized by the Constitution Act. The Service Tribunal in Azad Jammu and Kashmir has been established in 1975. After the establishment of Service Tribunal the jurisdiction of ordinary Civil Courts including High Court have been excluded in respect of matters falling within the jurisdiction of Service Tribunal. The matters which have been given in the exclusive jurisdiction of the Service Tribunal have been clearly mentioned in the Azad Jammu and Kashmir Service Tribunals Act, 1975. However, any civil servant aggrieved by an order passed in respect of terms and conditions of his service before 1st day of July, 1969 cannot avail the appellate jurisdiction of the Service Tribunal. From the reading of the Service Tribunals Act, it becomes clear that Service Tribunal has not been vested with the powers to issue such direction to a person performing functions in connection with the affairs of Azad Jammu and Kashmir to do, which he is required by law to do or refrain from doing that which is not permitted by law to do. Such direction can be issued by the High Court. Any provision of law which seeks to take away the jurisdiction of the High Court available to it under the Interim Constitution Act, 1974, in our view must be construed strictly. The jurisdiction of the High Court can be taken away through some express provisions otherwise the presumption would be in favour of the jurisdiction of the High Court." (underlining is mine)
11. In the present case, the petitioner only seeks a direction to the respondents to consider his case in light of his accrued right which admittedly stood accrued to him before his retirement, therefore, the objection raised by the learned Advocate-General, has no substance and is hereby repelled.
12. After perusal of the judgments referred to and relied upon by the learned Advocate for the petitioner, I am of the view that there is force in his contentions. It has been observed by the apex Court in a case titled Muhammad Aslam Khilji v. Azad Government of Jammu and Kashmir and another 1991 PLC (C.S.) 128 that:- "No doubt, 'eligibility' and 'merit and fitness' are entirely different matters. The fact that the appellant was eligible to become Assistant Commissioner did not necessarily mean that he must have been promoted as such. But the fact that he was eligible did create a right in him to be considered by the Selection Board. By denying this right a wrong was done to him and it should have been undone by the Service Tribunal which it has failed to do on the assumption that he was not eligible for promotion because he had not passed the examination under reference."
13. ' In all the above referred cases, reliance was placed on Muhammad Anwar's case in which after retirement he was awarded benefit of higher grade and the Government was directed to amend the relevant notification retrospectively.
14. ' It is not denied by the respondents that two posts were not available or the name of the petitioner was not included in the relevant working paper. It is also not pleaded that petitioner herein, was considered and found not fit for promotion. Had the selection Board met in time, the petitioner would have been considered and might have been entitled to promotion in B-19 because working paper, relied upon by the parties, reveals that the petitioner was the only eligible candidate in the panel. The action of the respondents is also derogatory to subsection (5) of section 6 of the Azad Jammu and Kashmir Civil Servants Act, 1976, which is as under:-- "6. Confimration --- 1(1)
(2) (3)
15. (4)
(5) A Civil Servant who, during the period of his service was eligible for confirmation in any service or against any post retires from service before confirmation shall not, merely by reason of such retirement, be refused confirmation in such service or against such post or any benefits accruing therefrom."
16. The contention of the learned Advocate-General that promotees are necessary party, in my estimation, is not correct because the petitioner has not claimed any relief against them. He could be given only benefit of the higher grade after retirement, as has been given to one of the employees serving in the Mohtasib Secretariat. A notional or presumptive promotion can be given to a civil servant without disturbing the others. The upshot for the above is that the petition is accepted and respondents are directed to consider the petitioner for promotion in B-19. As the petitioner has been retired, therefore, his promotion will not affect the seniority of any person already in the service. He would be entitled only to pay and allowance etc.