' MUHAMMAD AZAM KHAN, C.J.--- The above titled appeal with leave of the Court arises out of an order passed by the High Court on 4th April, 2011, whereby notification dated 25th March, 2011 is suspended, subject to objections from the other side till further orders.
2. Respondent No,1 filed a writ petition in the High Court on 24-3-2011, whereby he challenged the letter dated 21st March, 2011 and sought a direction to the respondents that they shall forward his name to the concerned authority for promotion against the available post of Senior Technical Teacher while relaxing Column No,6 of AJ&K (Education Schools Technical Cadre Service) Rules, 2010 with a prayer for canceling the letter dated 21st March, 2011. Along with the writ petition an application for stay order was also moved. The High Court sought parawise comments. On 4th April 2011, an application for amendment in the writ petition was made for arraying Faisal Ameen, appellant herein, D.P.I. Secondary Schools and. Headmaster Government Boys High School Brarkot Muzaffarabad in the line of respondents. The application for suspension of notification dated 25th March, 2011 was also moved. A learned single Judge in the High Court allowed the amendment application on the ground that the writ petition is at preliminary stage and suspended the operation of notification dated 25th March, 2011, subject to objections from the other party till further orders.
3. Mr. Mushtaq Ahmed Janjua, Advocate, counsel for the appellant, argued that the order passed by the High Court is patently illegal and against the law. The matter relates to the terms and conditions of service of the parties. Under section 47 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, the writ petition is not maintainable. If the respondent was aggrieved from the promotion order of the appellant, he had an opportunity to challenge the same by way of appeal in the Service Tribunal. He contended that the notification dated 25th March, 2011 was not challenged in the writ petition whereas without challenging the same, the High Court has suspended the operation of said notification through which the appellant was duly promoted.
According to him the High Court has no jurisdiction to entertain the writ petition and suspend the same. The learned counsel also contended that the stay order was issued without notice or without suspending Rule 34 of the High Court Procedure Rules. He referred to the cases reported as Syed Saleem Hussain Kazmi v. Azad Government and others [2005 SCR 259] and Rashad Saleem v. Ch. Zafar lqbal and others [2009 SCR 18].
' In the case reported as Syed Saleem Hussain Kazmi v. Azad Government and 4 others [2005 SCR 259], this Court observed that the promotion Of an individual cannot be made basis for striking down the rules framed by the Government or authority in exercise of powers conferred upon it under section 23 of the AJ&K Civil Servants Act, 1976.
' In the case reported as Rashad Saleem v. Ch. Zafar lqbal and 10 others [2009 SCR18], it was observed that it was enjoined upon the learned Judge to consider whether the appellant had a prima facie arguable case, balance of convenience is in his favour and if the interim relief is not allowed to him, then he will suffer an irreparable loss or not, but nothing like this was considered by the learned Judge, therefore, the impugned order is not sustainable under law.
4. While controverting the arguments of the learned counsel for the appellant, Mrs. Bilqees Rashid Minhas, Advocate, counsel for respondent No,1 argued that the stay order has been issued subject to objections by the other side till further orders. This Court normally doesn't interfere in the orders passed by the lower forum subject to the objections from the other side, hence the appeal is liable to be dismissed.
5. We have heard the learned counsel for the parties and perused the record. It appear from the record that the appellant and respondent are serving as Junior Technical Teachers in the Education Department. The Azad Government of the State of Jammu and Kashmir while exercising powers vested in it under section 23 of the AJ&K Civil Servants Act, 1976, framed rules for the post of Technical Teachers along with other posts on 18th May, 1994. The said Rules were substituted by new Rules on 27th August, 2010. The new Rules are called as "The Azad Jammu and Kashmir (Education Schools Technical Cadre Service) Rules 2010". A seniority list of Technical Teachers was prepared on 20th March, 2008. Respondent No,1, herein, Ghulam Hussain in his writ petition before the High Court claimed that he is at serial No,5 in the said seniority list. The candidates who were at serial Nos.4 and 6 in the seniority list have already been promoted. A new post is lying vacant in the Education Department. A new proposal for promotion against the said post was prepared which was turned down by the department vide letter dated 21st March, 2011. He claimed that the letter is discriminatory. The record ,reveals that the appellant, herein, was not arrayed as party in the writ petition. At later stage an application for arraying him as party on 4th April, 2011 was moved in the High Court and an application for suspension of the promotion order of the appellant, herein, issued on 25th March, 2011 was also made. The learned single Judge in the High Court suspended the operation of Notification dated 25th March, 2011 without serving notice upon the appellant, herein, as laid down in Rule 34 of the High Court Procedure Rules. It appears that requirements of High Court Procedure Rules were not fulfilled. No notice was issued nor the operation of Rule 34 was dispensed with. It also appears from the record that the learned Judge in the High Court failed to consider the necessary ingredients for issuance of stay order i,e, prima facie arguable case, balance of convenience and irreparable loss. The order appears to be bad in law. It may be stated that the provisions of Rule 34 of the High Court Procedure Rules are mandatory in nature. An order passed without compliance of the provision is bad in law. This Court recently in a judgment recorded in the case titled Dr. Muhammad Ejaz Khan v. Dr. Maqbool Ahmed others (Civil. Appeal No,187 of 2009, decided on 5-6-2012), has observed as under:--- ... Rule 34 of the Azad Jammu and Kashmir High Court Procedure Rules, 1984, postulates that a clear seven days' notice be issued to the other party before issuing stay order and if in the opinion of the High Court the matter is one of urgent nature and delay interving the notice will be detrimental to the interest of the petitioner and very purpose of filing writ petition will be defeated, then the High Court can dispense with the requirement of Rule 34 of the High Court Procedure Rules and issue ex parte stay order. This Court in a number of cases has held that the provisions of rule 34 of the High Court Procedure Rules require that a notice be issued to the respondents before passing any interim order in writ petition. In a case reported as Raja Muhammad Asghar Khan v. Muhammad Hafizullah and 5 others [2000 SCR 291], this Court observed as under:- "While issuing the stay order the High Court violated rule 34 of the High Court Procedure Rules which requires that a notice be issued to the respondents before passing any interim order in a writ petition, but no such notice was given to the appellant before stopping his promotion. The said rule creates an exception in cases of emergent nature by lying down that the requirement of issuing notice to the respondents may be dispensed with but the High Court did not relax the rule before passing the order."
6. It also appears that the matter relates to the terms and conditions of service of the parties. In the case titled Ghiasul Haq and others v. Azad Government and others [PLD 1980 SC (AJ&K) 5] this Court categorically held that jurisdiction of the High Court in the matters relating to the terms and conditions of service of civil servants is ousted. The ouster clause is absolute.
' In the case repotted as Syed Saleem Hussain Kazmi v. Azad Government 4 others [2005 SCR 259], this Court has observed that the Azad Government or any other person in exercise of powers under section 23 of the Azad Jammu and Kashmir Civil Servants Act, 1976, is authorized to make such rules as are necessary and expedient for cart ying out the purposes of this Act. So, it is for the Government or that authorized person to lay down the qualification or make rules in respect of civil servants under its/his commands. The wisdom of the Government or such authorized person without any proof of mala fide in this regard cannot be challenged or substituted by the Courts of law. It was observed in para 6 as under:- ".... In exercise of powers conferred to Government or any other person under section 23 of the said Act, the Government or such person is authorized to make such rules as are necessary and expedient for carrying out the purposes of this Act. So it is for the Government or that authorized person to lay down the qualification or make rules in respect of civil servant under its/his command. The wisdom of the Government or such authorized person without any proof of mala fide in this regard cannot be challenged or substituted by the Courts of law."
' It was further observed in para 8 that promotion in the next higher rank or cadre cannot be made basis for striking down the Rules framed by the Government or authority in exercise of powers conferred upon it under section 23 of the AJ&K Civil Servants Act, 1976. Para 8 is reproduced as under:- "8. We have discussed in the earlier part of this judgment that in the year 1993 some posts were created in the Northern Health Project, whereby in order to carry out that project some Assistant Directors/Assistant Chief Planning B-18 and Chief Planning B-19, were required. To fill up these posts rules were framed wherein the academic qualification for promotion to the post of Assistant Chief Planning was laid down as Ph. D./M. Phil in the given subjects. The grouse of the appellant is that as he was M.A. Economics and had more length of service at his credit as compared to respondent No,5, therefore, the qualification which he was having should have been laid down under these rules in order to pave way for his promotion. The promotion of an individual cannot be made basis for striking down the rules framed by Government or authority in exercise of powers conferred upon it under section 23 of the AJ&K Civil Servants Act, 1976."
7. It prima facie appears that if the order passed in favour of the appellant remains intact, no irreparable loss shall occur to the petitioner in the High Court. The suspension order appears to be bad in law.
8. We have also considered the argument of the learned counsel for the respondent that the impugned order has been passed subject to objections from the other side, therefore, the appeal is not maintainable . It is correct that this Court in a number of cases has held that when an order is passed by the lower forum, 'subject to objections by the other party, normally the party shall have to resort ,to the lower forum and file objections and this Court shall refrain from interfering in such orders, but if the order passed by the lower forum is against the legal provisions, then the party may file petition for leave to appeal against the said order in this Court. In the present case the order offends the provisions of Rule 34 of the High Court Procedure Rules and Order XLIX, Rules 1 and 2 of the Civil Procedure Code. The order also appears against the provisions of section 47 of the AJ&K Interim Constitution Act, 1974, therefore, the PIA/ appeal is competently filed.
The result of the above discussion is that the order passed by the High Court is set aside. The case is remanded back to the High Court for passing the order afresh while considering the judgments in the cases reported as Ghiasul Haq and others v. Azad Government and others PLD 1980 SC (AJK)
5] and Syed Saleem Hussain Kazmi v. Azad Government and 4 others. [2005 SCR 259], after hearing counsel learned counsel for the parties.