1. GHULAM MUSTAFA MUGHAL, C.J,--- Through this petition filed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, the Azad Jammu and Kashmir, Forests and Wildlife Department Service Rules, 2008 have been challenged to the extent of amalgamation of two distinct functional units, i.e, Wildlife and Fisheries, without any reference to the inter-se seniority and qualification of the officers. The working paper sent for promotion against the post of Deputy Director, Fisheries has also been challenged for being unlawful, discriminatory, arbitrary, fanciful, whimsical, mala fide and without lawful authority. The writ of prohibition is also sought in terms that respondents may be restrained from notifying the promotion of the private respondents Nos.6 and
7. A direction is also sought for correction of the order of the petitioner dated 10-11-2006.
2. ' Precise facts of the case are that the petitioner, herein, was appointed as Assistant Warden, Fisheries. Thereafter, he was promoted. As Assistant Director, B-17 on 9-3-2000. The post of Assistant Director, Fisheries B-17 was initially, a component of the Department of Tourism, Wildlife, Archaeology and Fisheries. According to the petitioner, he availed ex-Pakistan leave and during that period, respondents Nos.5 and 6 were promoted as Project Manager and Deputy Director, Fisheries despite of the fact that both the officers were belonged to a distinct functional unit/separate cadre (The Wildlife). This promotion is stated to have been made in violation of rules.
3. As per his claim, now, he is the senior most Assistant Director in the functional unit of Fisheries. His case is that on account of promotion of one Javed Ayub, Deputy Director, Wildlife and Fisheries, as Director, he was posted in his place vide order dated 26-3-2008, as Incharge Deputy Director, Wildlife and Fisheries. It is alleged by him that in the promotion order, the authority has wrongly shown the petitioner, herein; to have been posted as Incharge because no provision of Civil Servants Act or any other law authorizes the competent authority to appoint/promote anybody in higher scale as Incharge. It is alleged that on the application of the petitioner, the matter was processed for making the promotion of the petitioner on officiating basis but on the intervention of respondent No,4, the proceedings were dropped. It is stated that prior to 1996, the service of the department was regulated by the Azad Jammu and Kashmir, Fisheries, Tourism and Wildlife Department Rules, under which, the Fisheries was treated as a distinct and separate functional unit and cadre. It has a separate post of Deputy Director with separate feeding cadre. It is further alleged that for promotion, no academic qualification was prescribed in the present rules. The petitioner was the only eligible officer in the functional unit who was to be promoted on the post of Deputy Director but in order to deprive him from the right of promotion, an amendment was effected in the departmental rules in the year 1998, whereby, it was provided that for further promotion, the incumbent should be a graduate. It is alleged that the aforestated barrier is placed with malice and motive in order to deprive the petitioner from the right of promotion, which act is discriminatory and mala fide.
4. ' The petition has been contested by the respondents by filing written statement wherein it is stated that the Govt. Has bifurcated the Wildlife and Fisheries Department from Tourism and Archaeology and has created a separate department, with the name and style of Wildlife and Fisheries Department, which now, is a part of earlier functional unit. In view of the changed position, a common seniority list of Assistant Directors was prepared and maintained, in which, the petitioner is at serial No,3. This seniority list has attained finality for having not been challenged by any official. The appointment of the petitioner as Incharge Deputy Director was made because no post was available at that time and officiating appointment, as the same can be made against a clear vacancy. In Para No,9 of the comments/written statement, it is alleged that 25% quota has been allocated to non-technical category, to which, the petitioner belongs, hence, his grievance against the other category is misconceived.
5. ' Private respondents, herein, in their separate written statements have claimed that under Section 4 of the Azad Jammu and Kashmir Service Tribunals Act, 1975, and in the light of the bar contained under section 47 of the Interim Constitution Act, 1974, the vires of any rule cannot be challenged before this Court. It is further pleaded that neither the Selection Board can be restrained from performance of its statutory duty nor issuance of a formal notification after finalization of the recommendations can be stopped. The petitioner can agitate his grievance before the Tribunal, after passing the final order, including challenging the vires of the rules.
6. ' Mr. Ashfaq Hussain Kiani, the learned Advocate for the petitioner, inter alia, argued that the service of the parties is regulated by the rules known as 'The Azad Jammu and Kashmir Tourism, Wildlife, Archaeology and Fisheries Department Rules, 1996' (Annexure "E"). Under these rules, the post of Deputy Director, Tourism, and Deputy Director, Fisheries, are shown in the separate functional units and cadres. He submitted that for promotion to the post of Deputy Director, Tourism, Assistant Director, Tourism B-17 with 5 years service as such, in the department is required, whereas, for promotion on the post of Deputy Director, Fisheries, Assistant Director, Fisheries B-17 with 5 years service in the department. Is the requirement of the rules. He argued that posts of Assistant Game Warden B-17, Assistant Director, Fisheries B-17 and Assistant Director, Tourism have been created in the different functional units and different &'ties have to be performed by these officers, for which, different qualifications have been prescribed, hence, the line of promotion should essentially, be within the same functional unit. He submitted that vide notification dated 18-4-2008, for promotion on the post of Deputy Director, Fisheries and Wildlife, Assistant Director, Fisheries B47 and Assistant Game Warden B-17 have been declared eligible by amalgamating two separate cadres in one. He argued that the petitioner brought into the notice of the High-ups of the department the aforementioned anomaly and the Director General Tourism, vide his letter dated 5-4-2002, addressed to the Secretary, Tourism and Forests about the defect in the rules, relying upon the rules of the Punjab but no action has been taken upon this proposal, which was initiated in light of the representation of the petitioner. He maintained that with mala fide intention, without deciding the appeal/representation of the petitioner, the case for promotion of the private respondents was submitted to the respective Selection Board without including the name of the petitioner. The learned Advocate submitted that amalgamation of different functional units, without considering their qualification is illegal and violative of the AJ&K Civil Servants Act, 1976 and the Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977. In support of his submission, the learned Advocate placed reliance on a case titled, Falak Sher Khan and another v.
7. Mukhtar Ahmed and others PLD 1989 SC 262.
8. Mr. M. Tabbasum Aftab Alvi, the learned Advocate for the private respondents, on the other hand, has raised a preliminary objection to the maintainability of the petition. He argued that the grievance, voiced through the instant petition relates to the terms and conditions of the service of the petitioner and for the purpose, proper forum is the Azad Jammu and Kashmir Service Tribunal and jurisdiction of this Court is barred under section 47 of the Azad Jammu and Kashmir Interim Constitution Act, 1974. The learned Advocate further argued that even, the vires of rules can be challenged before the Service Tribunal, after passing the final order against an aggrieved civil servant. The learned Advocate contended that the rules have been framed after amending the Rules of Business, therefore, without challenging the amendment effected in the said Rules, this petition cannot be granted. The learned Advocate further contended that even, for officiating promotion, the petitioner can approach to the Service Tribunal.
9. ' Mr. Abdul Hameed Khan Shahid, the learned Advocate for the official respondents has adopted the arguments raised by the learned Advocate for the private respondents. Mr. M. Tabbasum Aftab Alvi, has placed reliance on the following cases:--
(1) Muhammad Ilyas Khan and 5 others v. Sardar Muhammad Hafeez Khan and 4 others 2002 PLC (C.S.) 1282.
(2) Raja Naveed Hussain Khan and others v. Qazi Khalil-ur-Rehman and others 1994 SCR 267.
(3) Accountant General and others v. Zaman Hussain Khan 1998 PLC (C.S.) 431.
(4) Muhammad Naseer Jahangir and 13 others v. Abdus Sami Khan and another 1997 PLC (C.S.)
10. 1115.
(5) Jamil Akhtar Sherazi v. Azad Jammu and Kashmir Government through Chief Secretary and 4 others 1993 PLC (C.S.) 637.
(6) Sikandar Aziz and 20 others v. Secretary, Ministry of Industries and Production Government of Pakistan Islamabad and 4 other, 2001 PLC (C.S.) 205.
11. ' I have heard the learned Advocates for the parties and gone through the relevant record with my utmost care.
12. ' Before proceeding further, I would like to attend the objection raised by Mr. M. Tabbasum Aftab Alvi, the learned Advocate for the private respondents, regarding the maintainability of the petition on the ground that petitioner, herein, through the instant petition, has agitated controversy relating to the terms and conditions of his service, therefore, jurisdiction of this Court is barred. It may be stated that the writ jurisdiction is conferred on this Court by section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, and the ouster of jurisdiction can be claimed only within the parameters, limitations and restrictions .Placed by the said Act. In my opinion, the jurisdiction of this Court is barred, only in respect of those matters, for which special tribunals possess the jurisdiction otherwise, ouster of jurisdiction cannot be claimed in routine. The jurisdiction of the Service Tribunal is qualified and conditional. Under section 4 of the Azad Jammu and Kashmir Service Tribunals Act, 1975, an appeal is competent against a final order, therefore, it cannot be assumed, that every order relating to the terms and conditions of service is appealable before the Service Tribunal. The apex Court of Azad Jammu and Kashmir, in various cases has concluded that writ of mandamus and prohibition cannot be issued by the Service Tribunal, therefore, a party who seeks intervention of this Court for issuance of the kinds of writs stated above, the relief cannot be refused to him on the ground that the matter can be agitated before the Service Tribunal after completion of the alleged illegal act. A reference can be made to Syed Shakir Shah's case 2002 PLC (C.S.) 821 and Zubbaida Begum's case 1998 PLC (C.S.) 292. The objection has been raised on the strength of the rule of law laid down in Ghias-ul-Haq's case PLD 1980 SC (AJK)
5. In my estimation, the rule of law laid down, therein, is not attracted in this case. In that case, an adverse order affecting the terms and conditions of the service of the appellant, therein, was challenged before the Service Tribunal and simultaneously, a petition was filed before this Court, in which, vires of the rules were challenged. Their lordships, concluded that vires of rules can be challenged together, with the order passed under those rules before the Service Tribunal and the Tribunal, while exercising its appellate jurisdiction can declare the rules as violative of the Act or fundamental rights guaranteed under Section 4 of the Azad Jammu and Kashmir Interim Constitution Act, 1974. The objection also not tenable in light of latest pronouncement of the apex Court. In Khawaja Ghulam Muhammad's case 2001 PLC (C.S.) 321, their lordships considered a similar objection and at page 329 of the report, after examining the case-law on the subject, including Ghias-ul-Haq's case, came to the conclusion that rules can only be challenged before the Service Tribunal, if the same have been interpreted to his disadvantage and in absence whereof there is no concept of challenging the rules in vacuum. The relevant observation recorded in para 5 of the report, is as under:--- "We have given due consideration to the arguments raised at the bar. It is evident from the case cited by the learned counsel for the parties that vires of departmental rules can be gone into the Service Tribunal only if the rules have been interpreted to the disadvantage of a civil servant adversely affecting the terms and conditions of his service. Except the unreported case of this Court titled Muhammad Imtiaz Khan v. Azad Govt. Of the State of Jammu and Kashmir (Civil Appeal No,18 of 1995 decided on 17-5-1995), in all other cases relied upon by the learned counsel for the appellant, the rules were challenged before the Service Tribunal after the same were interpreted to the disadvantage of a civil servant. So far as Imtiaz Khan's case is concerned, the question as to whether the departmental rules can be independently challenged before the Service Tribunal or not, was not the subject matter of controversy between the parties; the point was not raised and no finding was given on any such point by this Court. However, the case was remanded to the Service Tribunal with the direction that it should also consider the point relating to the vires of the departmental rules and decide the matter afresh according to law. Obviously, the aforesaid case cannot be interpreted to mean that this Court has held that departmental rules can be challenged independently even if the same were not interpreted to the disadvantage of a civil servant. It is clear from the provision contained in Rule 4 of the Appeal Rules, '1991 and section 4 of the Service Tribunals Act, that the Appeal etc. Are competent to the concerned authority only if an order has been passed regarding the terms and conditions of service of a civil servant. There is no provision in the rules or Service Tribunals Act to the effect that the departmental rules can be challenged even if the same were not interpreted to the disadvantage of a civil servant."
13. ' An identical view was taken by a Division Bench of this Court in Sheikh Masood Iqbal's case 2008 PLC (C.S.) 1, while relying upon the aforesaid judgment.
14. ' In Basharat Hussain's case 2004 PLC (C.S.) 1022 similar view was reiterated, observing therein, that Service Tribunal has only power to set aside, vary or modify an order appealed against, not to issue direction to amend the Rules. The relevant observation is recorded at page 403 of the report, which is as under:-- "In the instant case, the respondents directly challenged the relevant departmental rules as being discriminatory and sought 25% quota for Chief Operation Theatre Technicians as was done in case of Radiographer Technicians. When the appeal was filed by the respondent to the Service Tribunal, the relevant rules had not been interpreted to his disadvantage. Thus, the appeal to the Service Tribunal challenging the departmental rules was not, competent. It is correct' that the Service Tribunal passed the impugned judgment after the case was remanded by this Court. However, the aforesaid point was neither agitated before this Court nor before the Service Tribunal after the remand. Thus, we are of the considered view that the Service Tribunal could go into the vires of the departmental rules, i.e,, on the basis that the same were discriminatory, because special quota was not reserved for Chief Operation Theatre Technicians.
15. ' The contention of the learned counsel for the appellants that the Service Tribunal could not issue direction under section 5 of the Service Tribunals Act for amending the rules must also prevail because the jurisdiction which has been conferred under section 5 of the. Service Tribunals Act does not postulate any direction to the Government for amending the departmental rules. For convenience, section 5 of the Service Tribunals Act is reproduced as under:-- "5. Power of Tribunal.--- (1) A Tribunal, may, on appeal, confirm, set aside, vary or modify the order appealed against".
16. ' It is evident from what has been stated above that the directions given by the Service Tribunal to amend the relevant rules could not be given as has been held by this Court in Khaliq's case referred to above.
17. Now adverting to the case of the petitioner herein, it may be stated that his name has not been included in the working paper which sent to the respective Selection Board for consideration, hence, there is no occasion for him for challenging the rules or the impugned order before the Service Tribunal. If the Court comes to the conclusion that the intended action and recommendations are illegal and violative of the rules, then, there is no harm in entertaining the writ of prohibition on the application of an aggrieved person.
18. ' In light of the above discussion, the objection of jurisdiction is not sustainable hence, the same is repelled.
19. ' So far as the case in hand is concerned, under the scheme of the unamended rules, the posts of Deputy Director Tourism B-18 and Deputy Director Fisheries B-18 were a component of different functional units but under a common Directorate either i.e, Director General of Tourism, Wildlife, Archaeology and Fisheries. The post of Assistant Game Warden B-17 do exist in the unamended rules but there was no avenue for promotion of the incumbent on the post of Deputy Director Tourism or Fisheries because the qualification of these posts and nature of function to be performed by the Deputy Directors were totally different. The Government, while amending the Rules of Business, has created a common functional Unit either the Fisheries and Wildlife. After doing so, the rules have also been amended and the Assistant Game Warden B-17 has been provided an avenue for promotion as Deputy Director Fisheries and Wildlife.
20. ' Mr. Ashfaque Hussain Kiani, the learned counsel for the petitioner, has taken a serious objection on this amalgamation because in his estimation both the posts have different qualifications and nature of duties is also not the same, which fact is liable to be considered by the Government before amalgamation. I am of the view that it is not the job of this Court rather best Judge is the Government. Suffice is to observe that similarity in the qualification and nature of duties is one of the approved criteria. Mere apprehension of a civil servant from deprivation of further promotion is not a ground on which amalgamation can be struck down. The same view was approved in AIR 1991 SC 1882. The relevant observation has been recorded in paras 5 and 6 of the report, which are as under:- "5. However, when different cadres are merged certain principles have to be borne in mind. These principles enunciated in the case of State of Maharashtara v. Chandrakant Anant kulkarni [1982] 1 FER 665 at page 678: AIR 1981 SC 1990 at pp.1994- 95 while considering the question of integration of Government servants allotted to the services of the new states when the different states of India were reorganized. This Court cited with approval the principles which had been formulated for affecting integration of services of different states. These principles are: In the matter of question of post (1) where there were regularly constituted similar cadres in the different integrating units, the cadres ordinarily be integrated on that basis but (2) where there were no such similar cadres, the following factors will be taken into consideration in determining the equation of posts:---
(a) Nature and duty of a post;
(b) Powers exercised by the officers holding a post extent of territorial or other charge held or responsibilities discharged;
(c) The minimum qualifications, if any, prescribed for recruitment of the post and;
(d) The salary of the post.
21. ' This Court further observed that it is not open to the Court to consider whether the equation of posts made by the Central Government is right or wrong. This was a matter exclusively within the province of the Central Government. Perhaps the only question the Court can acquire into is whether the four principles cited above had been properly taken into account. This is the narrow and limited field within such the supervisory jurisdiction of the Court can operate.
(6) This decision has been relied upon in a subsequent decision of this Court in Union of India v. S L.
22. Dutta (1991) 1 SCC 505: AIR 1991 SC 363."
23. ' The view taken in the aforesaid case was reiterated in AIR 1998 SC 1882. It needs to be noticed that classes of the officers as are provided in the Azad Jammu and Kashmir Wildlife Act, 1975 has no nexus with Fisheries because the same was not included in the Wildlife Act but by amending the aforesaid Act through Ordinance XIV of 2010 the Fisheries has been included therein. However, quite contrary, Director General Tourism vide his letter Annexure J/3 has suggested an amendment in the rules under challenge because the same have been framed in violation of the existing rules in Punjab. This Court is not in a position to comment upon the letter and judge the vires of the rules.
24. The proper forum is that of the Government, who may take step in furtherance of the said letter uninfluenced by any observation made herein above. Law is well settled that the Government has a right to frame, amend and rescind the rules similarly to create new functional units/cadres. No limitation can be placed on the powers of the Government to constitute a separate cadre or amalgamation of the various categories into one functional unit. PLD 1987 SC 172 and PLD 1988 SC 155 can be quoted in support of the proposition. A reference can also be made to 1998 SCMR 1453.
25. In the present case the petitioner has been providing an avenue for further promotion as 25% quota has been fixed for the non-technical category, to which he belongs. The quota is a pure question of fact which cannot be resolved in writ jurisdiction, therefore, to this extent the question is left open. After the final order the petitioner may approach the Service Tribunal.
26. ' The contention of the learned Advocate that petitioner has not been promoted on officiating basis rather is posted as an Incharge, Deputy Director, which term is not covered by any provision of Civil Servants Act and rules made thereunder, is correct but the relief cannot be extended to the petitioner even by issuing a direction. No record has been placed to the effect that a permanent post against the quota of the petitioner's category is available. Similarly, it is doubtful that private respondents have been approved against the same post quota or against the quota of their own cadre, therefore, the matter is left open for the decision of the appropriate authority, who shall consider as to whether the post occupied by the petitioner is available against his quota or not.
27. The authority can amend the order in light of the dictum of the Supreme Court of Azad Jammu and Kashmir laid down in M. Yaqoob Khan's case 1999 MLD 1862.
28. The nutshell of the above discussion is that so far as the challenging of the rules is concerned, petition has no merit, however, the question of quota will be decided by the proper Tribunal and if the petitioner considers himself aggrieved after the promotion of the private respondents, he may prefer an appeal for redressal of his grievance.
29. ' In view of above, this petition stands disposed of in the terms indicated above.