' M. TABBASUM AFTAB ALVI, J.---The supra titled writ petition has been addressed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 whereby following relief is solicited by the petitioner:- "It is, therefore, most humbly prayed that by accepting the instant petition an appropriate writ may kindly be granted;
(i) directing the respondent No.1 to issue the promotion notification of the petitioner in grade BPS- 20 for which Selection Board No.1 has approved the petitioner to be eligible for promotion;
(ii) declaring the Notification No. S&GAD/ H-1(35)/ (2001) (Gazatted-I) dated 14-6-2011 whereby a sub-committee constituted to judge the precedent/verdict of Selection Board No.1 is without having legal backing, malicious, capricious, discriminatory, arbitrary, political motivated liable to be struck down as without lawful authority against the service laws;
(iii) any other relief which this hon'ble Court deems fit may also be granted."
2. Precise facts giving rise to the instant writ petition are that Selection Board No.1 respondent, herein, considered case of the petitioner along with other eligible Doctors for promotion in grade B-
20. It is stated that after considering the eligibility and suitability, the said Selection Board approved the promotion of the petitioner along with some other Doctors in grade B-20 on the basis of merit- cum-fitness. It is claimed that despite approval of the Selection Board, promotion of the petitioner was not notified by the respondents and after pretty long time a committee was constituted for judging the validity of the recommendations of the Selection Board vide notification dated 14-6- 2011. It is averred that for the purpose of promotion of Civil Servants in the higher grade, Selection Board No.1 is constituted which is headed by the Chief Secretary, besides Secretary Finance, Secretary Services and some other officers as its members which after due process, recommended promotion of the petitioner and other eligible officers, hence, the petitioner could not be deprived from accrued right on the basis of notification dated 14-6-2011. It is alleged that as official respondents failed to notify promotion of the petitioner, therefore, he was constrained to file the instant writ petition before this Court.
3. The writ petition has been contested by the official and private respondents through separate written statements. It is stated that no civil servant can claim promotion as a matter of right which is a sole prerogative of the concerned authority. It is further stated that recommendations made by the concerned Selection Board were not binding on the authority under law. The private respondents also filed separate detailed written statement, wherein it is stated that against impugned notification dated 14-6-2011 the instant writ petition was filed on 29-11-2011 after more than 5 months which is hit by principle of laches. It is averred that matter pertains to terms and conditions of the service of the petitioner and an alternate remedy in shape of filing appeal before the Service Tribunal was available to him, therefore, the instant writ petition is hit by section 47 of The Azad Jammu and Kashmir Interim Constitution Act, 1974. It is further stated that as recommendations of the Selection Board did not create any right in favour of the petitioner, therefore, he is not an aggrieved person in the eyes of law. It is claimed that respondent No.6 was declared malafidely non-suitable for promotion on some so-called information furnished by the representative of Department not forming part of her service record, therefore, recommendations being violative of rules cannot be implemented through writ jurisdiction.
4. The learned counsel for the petitioner, Mr. Mushtaq Ahmed Janjua, Advocate while reiterating the grounds of writ petition submitted that Selection Board No.1 after considering the petitioner against 14 posts of Specialist Grade B-20 recommended 08 Doctors including the petitioner, by placing Dr. Waqar Haider Cardiologist, as an alternative candidate due to incomplete ACRs of Dr. Mohsin Shakil Surgical Specialist, on the basis of merit cum fitness, in its meeting held on 17-5-2011. The learned counsel pressed into service that instead of issuing notification on the basis of the above- mentioned recommendations, Government-respondent constituted a sub-committee on 14-6-2011 through which powers of Selection Board were curtailed. The learned counsel emphasized that as the petitioner is better qualified vis-a-vis to the private respondents, therefore, on the basis of law laid down by the apex Court in a case titled Kh. Maqbool Ahmed v. AK Government and others (2011 SCR 66), the petitioner was rightly recommended on the basis of higher qualification.
' In case of Khawaja Maqbool Ahmed, supra, it was held that in case of selection post the contender with higher qualification has to be preferred.
5. The learned counsel for the private respondents, Mr. Abdul Rasheed Abbasi, Advocate while controverting the arguments of the learned counsel for the petitioner submitted that the impugned notification was issued on 14-6-2011 against which writ petition was filed on 29-11-2011 after more than five and half months, hence, the same is liable to be dismissed on ground of laches. The learned counsel further submitted that admittedly the petitioner is a civil servant and it is his case that due to issuance of the impugned notification dated 14-6-2011 his terms and conditions were affected, hence, he has an efficacious remedy in shape of an appeal before the Service Tribunal and the instant writ petition is also not maintainable on this score. The learned counsel further emphasized that the recommendations of the Selection Board were not binding on the competent authority, therefore, no illegality was committed by the Prime Minister, while submitting the matter for reconsideration to the Selection Board. The learned counsel for the private respondents strenuously argued that the petitioner was not better qualified as held by the Selection Board because he has obtained DCH qualification from Alama Iqbal Open University Islamabad which is not recognized by the PMDC.. The learned counsel further submitted that in accordance with provisions of Rule 20 of Rules of Business, 1985 read with Rule 5 of the Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977 more than one Selection Boards/Committees can be constituted by the Government, hence, the question of constitution of another Selection Board does not arise. The learned counsel, in support of his contentions, 'referred to and relied upon the following case-law:--
(i) Azad Government of the State of J&K and others v. Haji Summandar Khan and others (1995 MLD 1350);
(ii) Shamas Din v. Aman Ullah and 3 others (PLD 1987 Lah. 471);
(iii) Ghiasul Haq and others v. Azad Government of the State of Jammu and Kashmir and others (PLD 1980 SC AJK 5); (iv)' Raja Naveed Hussain Khan and others v. Qazi Khalil-ur-Rehman and others (1994 SCR 267);
(v) Ejaz Ahmed Awan and 5 others v. Syed Manzoor Ali Shah and 5 others (1999 PLC (C.S.) 1439);
(vi) Raja Muhammad Sohrab v. AJ&K Government and 6 others (2002 PLC (C.S.) 1138);
(vii) Munir Hussain Shah v. Secretary Forest Department Azad Government of the State of J&K Muzaffarabad and another (1993 PLC C.S. 1153).
' In case of Azad Govt. Of the State of Jammu and Kashmir and 2 others, it was held that writ petitions filed by the respondents after 5 months, therefore, the same were dismissed on the ground of laches.
' In case of Shamas Din, supra, it was held that writ petition filed after 3 months was hit by principle of laches and the same was dismissed as such. .' In case of Ghiasul Haq and others, it was held that an order affecting the terms and conditions of a civil servant cannot be challenged in the High Court in writ jurisdiction.
' In case of Raja Naveed Hussain Khan and others, it was held that High Court has given direction for giving effect to those matters which are admittedly terms and conditions of service which could not be resolved while exercising writ jurisdiction.
' In case of Ejaz Ahmed Awan and 5 others, it was held that, if an order has been passed by the departmental authority, it can only be challenged by filing an appeal before the Service Tribunal to the total exclusion of jurisdiction of the High Court.
' In case of Raja Muhammad Sohrab Khan, it was held that Selection Committee selected the respondent in patent violation. Of the relevant law and rules, hence, jurisdiction of the High Court regarding an employee of Corporation was not barred under law.
' In case of Munir Hussain Shah, it was held that promotion of respondent was made in violation of rules, hence, section 4 of the Service Tribunals Act, 1975 would not stand in way of appellant to prefer an appeal before the Service Tribunal.
6. After hearing the learned counsel for the parties at length, we have perused the contents of writ petition and examined the appended record with our utmost care.
7. A contemplate perusal of record reveals that against impugned notification dated 14-6-2011 the instant writ petition was filed before this Court on 29-11-2011 after more than 5 months, hence, principle of laches is fully attracted in this case. A perusal of contents of writ petition reveals that no explanation whatsoever was given by the petitioner for this delay. In case of AJK Government and others v. Haji Summandar Khan, (1995 MLD 1350 at page 1360), it was observed by the apex Court; "The learned counsel for the petitioners respondents maintained that after the judgment of the Higi Court in the writ petitions filed by the other land owners they issued a notice to the Government to pay them the amount of compensation at the rate of Rs.40,000 per kanal within a period of 15 days to one month but they did not oblige. Even if we subtract the period of one month from the period reckoned from the date of the judgment of the High Court in the said writ petitions even then the writ petitions are belated by 5 to 8 months. There is no explanation whatsoever for the aforesaid delay and, thus, the writ petitions would still be hit by laches."
' Therefore, by following the dictum of the Supreme Court, we hold that the instant writ petition is hit by laches which is liable to be dismissed on this score. We accordingly ordered.
8. Even otherwise, a perusal of proceedings of Selection Board reveals that recommendations of Azad Jammu and Kashmir Selection Board No.1 returned on 17-5-2011 were submitted to the Prime Minister for administrative approval, however, matter was re-submitted to the Selection Board for re-consideration. The meeting of Selection Board No.1 was again held under the chairmanship of the Chief Secfetary Government of Azad Jammu and Kashmir and after thorough deliberation the Selection Board itself unanimously recommended to defer the agenda No.3 regarding the promotion of Specialist Doctors BPS-20 and recommended to constitute a sub-committee comprising of the follow ing:--
(i) Additional Chief Secretary (General), Chairman;
(ii) Secretary Services, Member;
(iii) Secretary Law, Justice and Parliamentary Affairs, Member/ Secretary ' The contention of the learned counsel for the petitioner that recommendations of the Selection Board be implemented and impugned notification dated 14-6-2011 issued by the Government which has curtailed powers of the Selection Board is, therefore, misconceived and against the record. As Selection Board has itself deferred the proceedings and its recommendations, hence, nothing remains for which direction of implementation could be issued because the Selection Board has itself kept the proceedings in abeyance..
9. As we decided writ petition on the basis of the above preliminary points, therefore, other arguments addressed by the learned Advocates for the parties need not to be resolved.
' In view of the above, finding no substance in the instant writ petition the same is hereby dismissed with no order as to costs. However, we are of the considered opinion that every eligible civil servant has a statutory right to be considered for promotion, hence, we directed that the authority should resolve the matter in hand within a period of 3 months. A copy of the order shall be sent to Chairman Selection Board (Chief Secretary) for implementation and necessary action.