M. TABASSUM AFTAB ALVI, J. --- The supra titled writ petition has been addressed under Section 44 of the Azad Jammu & Kashmir Interim Constitution Act, 1974, whereby vires of Government notification dated 29.11.2012, through which private respondent No. 6, after retirement as Secretary to Government was re-appointed on contract basis against the post of Managing Director Hydro Electric Board B-20, has been challenged for having been issued without lawful authority. A further direction for placing the case of petitioner before the concerned Selection Board for promotion has also been solicited.
2. Precise facts forming background of the instant writ petition are that petitioner was promoted against the post of Director Electrical B-19, vide notification dated 23.12.1997, who claimed to be confirmed as such on regular basis after due process, vide. Circular dated 03.03.1998. The petitioner was entrusted independent post of Director General Private Power CO, vide Government notification dated 13.10.2010. He being senior most trained officer of Hydro Electric Board, was also entrusted powers of Project Director, Jagran Hydal Project Phase-II, vide notification dated 27.11.2011.
The petitioner was then promoted on officiating basis as Director Genera: Private Power Cell B-20, vide notification dated 12.11.2012. The private respondent Mushtaq Ahmed Gorsi, who was retired from the post of Secretary to Government, was re-appointed against the disputed post of Managing Director Hydro Electric Board B-20, on contract basis, vide impugned notification dated 29.11.2012. However, before appointment of the private respondent against the disputed post the matter pertaining to his re-appointment was not placed before the Scrutiny Committee as visualized vide notification dated 03.05.2010. It is averred that on the basis of Departmental Statutory Rules, promulgated vide notification dated 01.11.2007, petitioner was eligible to be promoted against the post in question, however, for mala fide reasons, his case was not placed before the concerned Selection Board, hence, the instant Constitution petition.
3. The writ petition has been resisted by the respondents through written statement, wherein it is stated that as petitioner is holding the post of Director General Private Power Cell B-20 on officiating basis, therefore, he is not an aggrieved party within the meaning of Section 44 of the Azad Jammu & Kashmir Interim Constitution Act, 1974. It is further stated that Departmental Statutory Rules promulgated vide notification dated 01.11.2007, provides three modes of appointment against the disputed post and as contract appointment is one of the mode, therefore, no illegality was committed by the Government, while appointing private respondent No. 6 against the said post. It is averred that petitioner is not senior most officer as there are as many as 5 Superintending Engineers in Electricity Department, who are senior to petitioner, hence, his matter cannot be directed to be placed before the respective Selection Board. It is stated that Government notification dated 03.05.2010 regarding reemployment/appointment against civil post, in connection with the affairs of Azad Govt. Of the State of Jammu & Kashmir, is not applicable to appointment in the autonomous bodies like Hydro Electric Board. It is claimed that as private respondent No. 6 was qualified as B.Sc. Electrical Engineering, who remained as Chief Engineer of Electricity Department for 6 years and posted as Secretary Hydro Electric Board as well, hence, was rightly appointed by the Government against the post of Managing Director Hydro Electric Board B-20 and prayed for dismissal of writ petition.
4. Kh. Attahullah Chak, the learned counsel for petitioner , vehemently argued that private respondent was appointed against the post of Managing Director Hydro Electric Board B-20, on contract basis, vide impugned notification dated 29.11.2012, by violating Government notifications dated 20.02.2010 and 03.05.2010, respectively, hence, the impugned appointment merit abrogation.
The learned counsel pressed into service that no re-employment/appointment on contract basis can be made without referring the matter to respective Committee for scrutiny and its recommendation as laid down in notification dated 20.02.2010. The learned counsel further argued that as procedure laid down in the policy notifications supra was not followed, therefore, the impugned notification is derogatory to law, which must be buried as such. The learned counsel emphasized that as petitioner on the basis of Departmental Statutory Rules, promulgated vide notification dated 01.11.2007, was eligible to be considered for promotion, however, due to illegal re- employment on contract basis of private respondent, the right of his promotion has been jeopardized, hence, petitioner is covering in the definition of an aggrieved party. The learned counsel in support of his contentions referred to and relied upon the following case-law:-
(I) Azad Government & 2 others v. Muhammad Naseer Chaudhary and 2 others (2010 SCR 186);
(ii) Azad Govt. Of the State of Jammu & Kashmir through Chief Secretary & 3 others v. Sardar Abdul Aziz Khan (2012 SCR 187);
(iii) Sardar Aftab Ahmed and 5 others v. Maj. (Rtd.) Muhammad Aftab Ahmed and 3 others (1,999 SCR 119);
(iv) An unreported order of the apex Court passed in civil Misc. No. 80/2013 titled Ch. Muhammad Aslam v. Azad Govt. & others dated 11.04.2013;
(v) An unreported Division Bench judgment of this Court passed in writ petition No. 25/2013 titled Kh.
Abdul Hamid, Chief Geologist AKMIDC Muzaffarabad v. Azad Jammu & Kashmir Government through its Chief Secretary, Muzaffarabad & 5 others decided on 05.04.2013.
5. Mr. Abdul Rasheed Abbasi, the learned counsel for private respondent submitted that instructions contained in the notifications dated 20.02.2010 and 03.05.2010 are not covering in the definition of Statutory law, therefore, on the basis of the above notifications no relief can be granted to petitioner. The learned counsel further emphasized that for the disputed post of Managing Director Hydro Electric Board, Departmental Statutory Rules, were promulgated by the Government while exercising powers as visualized by Section 23 of Civil Servants Act, 1976, vide notification dated 01.11.2007, therefore, the above-mentioned policy notifications were not applicable as such. The learned counsel pressed into service that it is settled principle of law that special law override the general law, hence, in presence of Departmental Statutory Rules, the notifications supra were not attracted in the given case. The learned counsel vehemently argued that as there are 05 Superintending Engineers, who are senior to petitioner, hence, he is not an aggrieved party within the meaning of Section 44 of the Azad Jammu & Kashmir Interim Constitution Act, 1974. The learned counsel further argued that petitioner is a civil servant, therefore, against the impugned notification dated 29.11.2012, he could invoke jurisdiction of Service Tribunal for redressal of his grievance, if any, however, instant writ petition is not maintainable. The learned counsel in support of his contentions referred to and relied upon the following case-law:---
(i) Mst. Sardar Begum and another v. Additional Custodian, Evacuee Property, Azad Jammu & Kashmir Government & others (PLD 1980 SC AJK 1);
(ii) Arif Hussain Dar v. Board of Revenue through Secretary, Muzaffarabad & 5 others (PLD 2002 AJK 14);
(iii) Ch. Muhammad Fayyaz, Additional Custodian, Muzaffarabad and another v. Syed Arshad Gillani Ex-Additional Custodian Muzaffarabad, etc. (PLJ 1999 SC AJK 89).
6. Syed Hazoor Imam Kazmi, the learned counsel for official respondents owned the arguments of Mr. Abdul Rasheed Abbasi, Advocate, and added that petitioner failed to implead Scrutiny Committee and concerned Selection Board as party in the instant writ petition, therefore, the same is liable to be dismissed due to non-joinder of necessary party.
7. After hearing the learned counsel for parties at great length, I have perused the contents of writ petition, examined the appended record and has given my earnest thought to the points advanced by the learned counsel for parties.
8. A contemplate perusal of record reveals that private respondent Mushtaq Ahmed Gorsi, a retired Secretary to Government, was re-appointed on contract basis as Managing Director Hydro Electric Board B-20, vide impugned notification dated 29.11.2012. A bare reading of notification supra reveals that terms and conditions of his appointment were liable to be determined, later on, as per contract policy 2006. However, what terms and conditions were fixed later on were not placed on record by either of the parties. For regulating- the matter of reemployment of retired civil servants against the civil posts in connection with affairs of State of Jammu & Kashmir a notification dated 03.05.2010 has been issued under Section 23 read with Section 13 of the Azad Jammu & Kashmir Civil Servants Act, 1976. Before embarking upon the controversial issue pertaining to re- appointment of private respondent, against thepo in question, it will be appropriate to reproduce the policy Government notification supra which reads as under:--- "AZAD GOVT. OF THE STATE OF JAMMU & KASHMIR SERVICES AND GENERAL ADMINISTRATION DEPARTMENT.
"Muzaffarabad" Dated 3rd May, 2010 NOTIFICATION No. S&GAD/G-5 (22)/2010. In exercise of the powers conferred by Section 23 read with Section--13, of Azad Jammu & Kashmir Civil Servants Act 1976, the President, Azad Jammu & Kashmir has been pleased to approve the following policy for regulating the matters of re-employment of retired civet servants against the lull posts in connection with affairs of the Azad Govt. of the State of Jammu & Kashmir, namely:--- (i) The re-employment beyond superannuation shall be an exception and not the rule. (ii) It shall be recommended only in cases where government considers that the person is highly competent , with distinction in his/her profession/field and no qualified and experienced person is available from the existing cadres.
(iii) The retention of the officer is in the public interest and shall not block the promotion prospects of other officers.
(iv) Re-employment beyond the age of 63 years shall not be allowed.
(v) The civil servants who have been, or may be, retired by the competent authority on or after completion of 25 years of service qualifying for pension shall not be considered fit for retention in government service.
(vi) A civil servant on leave preparatory to retirement and is desirous of seeking re-employment, including those seeking such re-employment within first two years of their retirement, shall seek prior permission of the concerned authority.
(vii) A person, whose services have been terminated as a result of disciplinary action against him, shall not be re-employed.
(viii) No request for grant of ex-post-facto approval to the re-employment/extension in service, contract employment in any circumstances shall be entertained.
(ix) No officer appointed on contract or serving on re- employment shall be allowed to continue in the respective post after the expiry of the tenure and in case of overstay the financial liability shall rest upon the head of the department and the officer concerned himself/herself.
(x) All the cases of re-employment, extension in service , contract employment beyond the age of superannuation shall be considered by the committee constituted vide Notification No. S&GAD/G- 5(22)/2010, dated 20.02.2010 and issued under the Azad Jammu & Kashmir Cabinet decision taken in the meeting held on 18th January, 2010.
2. It has further been approved that Administrative Secretary concerned shall refer the proposal of such cases to the scrutiny committee, in the form of summary, containing the recommendation of the Minister in charge, duly signed by him and shall be accompanied/supported with the following verification, information and documents:-
(a) All the proposals for re-employment shall indicate reasons for non-availability substitute and steps taken to train a substitute and statement of circumstances in which no other officers could be groomed to take up the assignment.
(b) The proposed re-employment/extension in service of employment, contract employment of any retired civil servant shall not create promotion blockage for other officers.
(c) A brief report on the performance of the officer, proposed for the employment/extension in service or contract employment during his/her last 5 years of service.
(d) The officer proposed for re-employment/extension in service or contract employment is medically fit.
(e) The Administrative Secretary shall forward the proposals to the scrutiny committee at least two months before the date of superannuation or date of expiry of current period of re- employment/extension in service, contract employment as the case may be.
3. This notification shall take immediate effect.
(Syed Fida Hussain Gardezi) Additional Secretary S&GAD (General Cabinet)."
Similarly Government notification dated 20.02.2010, whereby upon the decision of Cabinet, a Committee has been constituted to scrutinize the matters of re-employment/extension and contract employment, also goes to the root of the case which is reproduced as follows:--- "GOVT. OF THE STATE OF JAMMU & KASHMIR SERVICES AND GENERAL ADMINISTRATION DEPARTMENT.
Block No. 2 New Civil Secretariat Complex.
"Muzaffarabad"
Dated 20th February, 2010"
NOTIFICATION. No. S&GAb/G-5 (22)/2010: Consequent upon the decision taken during the meeting of Azad Jammu & Kashmir Cabinet held on 18.01.2010, the President Azad Jammu & Kashmir has been pleased to accord approval to constitute the following committee to scrutinize the matters of re-employment/extension in service/contract employment:---
1. The Chief Secretary/Secretary Cabinet, Chairman Government of AJ&K.
2. The Secretary, S&GAD, Govt. Of AJ&K Member
3. The Secretary, Finance, Govt. Of AJ&K Member
4. The Secretary Law, Justice, Parliamentary Member Affairs & Human Rights, Govt. Of AJ&K.
5. Secretary of the concerned Department. Member/ Secretary
2. All the cases of re-employment/extension in service/contract employment will by referred to the said committee with the due recommendation of the concerned Minister.
3. The committee, after due scrutiny and recommendation, will submit the cases to Prime Minister for order.
Mazhar Farooq Janjua Section Officer (General) S&DG 05822-921974"
A bare reading of policy notification dated 03.05.2010 ibid reveals that re-employment beyond superannuation shall be an exception and not the rule, which shall be recommended only in cases where Government considers that the person is highly competent, with distinction in his profession/field and no qualified experienced person is available from the existing cadres. It is also postulated that retention of the officer is in the public interest and shall not block the promotion prospects of other officers. It is further inserted that no request for grant of ex-post-facto approval to the re-employment, extension in service, contract employment in any circumstances shall be entertained. According to para 2 of notification supra, the Administrative Secretary concerned shall refer the proposal of such case to the Scrutiny Committee in the form of summary, containing the recommendation of the Minister incharge. A perusal of the impugned notification reveals that all the provisions contained in the policy notification supra were not taken into consideration at the time of passing the same.
9. The Government-respondent, consequent upon the decision taken during meeting of Azad Jammu & Kashmir Cabinet held on 18.01.2010, also constituted a Committee to scrutinize the matters of re-employment, extension in service and contract employment vide notification dated 20.02.2010. A perusal of the same reveals that Chief Secretary/Secretary Cabinet is Chairman of the committee. The Secretary Services and General Administration Department, Secretary Finance, Secretary Law, Justice, Parliamentary Affairs and Human Rights, Department are members, while Secretary of the concerned Department is Principal/Secretary of the Committee. According to para 02 of the notification ibid all the cases of re-employment, extension in service and contract employment will by referred to the said committee with due recommendation of the concerned Minister. According to pare 3 of the said notification the Committee, after due scrutiny and recommendation, will submit the cases to Prime Minister for orders. The matter with regard to re- employment of the private respondent was neither referred to the Scrutiny Committee, nor recommended by it, therefore, the same is also violative of the above-mentioned notification.
10. The Government has regulated the services in Azad Jammu & Kashmir by enacting the Azad Jammu & Kashmir Civil Servants Act, 1976 and framing rules thereunder, for carrying out the purpose of the Act. According to Section 13 of the Azad Jammu & Kashmir Civil Servants Act, 1976, re-employment can be made only in public interest. The Government has also regulated the policy for appointment on contract basis as well as "re-employment in the notifications discussed herein above. The powers generally exercised by the Government or a public functionary must be backed and strictly in the line with the statutory law of the land. For good governance strict and faithful compliance of the rule of law and Constitution by the rulers and the ruled is sine-qua-non, otherwise, the non-observance of rules ruined the structure of the institutions as well as Government. It is well-settled principle of. Law that where an Act, or rule prescribe a specific mode for performance of an act, then such act should be performed in that manner, otherwise, it would be deemed to have not been performed at all. In case titled Muhammad Younas Tahir v. Shaukat Aziz, Advocate, Muzaffarabad and others (2012 SCR 213), at page 241 of the report, it was held by the Hon'ble Supreme Court as under:- "It is celebrated principle of law that when a . Particular method for performance of an act is prescribed under an Act or rules, then such act must be performed according to that particular method or not at all--------- Again in case titled Muhammad ldrees v. Collector of Customs and others (PLD 2002 Karachi 60), at page 71 of the report it was observed as follows:--- "A perusal of the provisions contained in Section 201 of the Customs Act, and in the rules shows that everything has been clearly and meticulously prescribed under the statute law and the rules framed thereunder. There is no indication of any procedure of post auction private offers or receiving of any higher bid as provided in the two Standing Orders. It is thus abundantly clear that the Collector of Customs has exceeded his jurisdiction in making provision for post auction bids, thereby contravening the provisions contained in Section 201 of the Customs Act and in the rules framed by the C.B.R. It is established principle of law that the things should be done as they are required to be done or not at all. Nobody can be allowed to contravene, flout or violate the statutes or the rules framed thereunder in the name of national interest or any other so-called high or sublime idea or ideal. The rule of law requires that every person in execution of law should follow strictly the law as laid down and should not exceed the limit of law for any reasons whatsoever."
11. The point with regard to re-employment, extension of service and contract employment came under consideration before the apex Court in Civil Miscellaneous No. 80/2013 titled Ch. Muhammad Aslam v. Azad Govt. & others dated 11.04.2013. It was held in paragraphs 7 and 8 of the Order as follows:--- "7. A perusal of notification dated 20th February, 2010 reveals that the notification has been issued in the light of the Cabinet decision dated 18th January, 2010 for the purpose of re-employment. The notification postulates that the committee consisting of Chief Secretary/Secretary Cabinet, Secretary, S&GAD, Secretary Finance, Secretary Law, Justice, Parliamentary Affairs and Human Rights, and Secretary of the concerned Department, has been constituted to scrutinize the cases of three categories referred to above. All the cases of re- employment, extension in service of employment and contract employment will be referred to the said Committee with due recommendations of the concerned Minister. The Committee, after due scrutiny and recommendations, will submit the cases to the Prime Minister for orders. The record reveals that the said Scrutiny Committee has not recommended the case of the petitioner to the Prime Minister for orders but the order appears to be issued clearly in violation of the notification.
The provisions of the notification are for smooth functioning of the Government. Any order issued against the said notification is not sustainable.
8. The notification dated 3rd May, 2010, postulates that a person shall be recommended only in cases where the Government considers that the person is highly competent, with distinction in his/her profession/field and no qualified and experienced person is available from the existing cadres. There is nothing on the record to form the opinion that the petitioner is highly competent and is a person having such distinctive qualities and no qualified and experienced person of such qualities is available in the department particularly when the petitioner has been retired as Chief Conservator of Forests while he has been appointed as Chairman AKMIDC which is not his relevant field. Therefore, he cannot be termed to be a person of such high qualities. It can safely be held that no prima facie arguable case has been made by the petitioner. When no prima facie arguable case is made, the other two ingredients, i.e., balance of convenience and irreparable loss become of academic nature."
The controversial issue was considered by a Division Bench of this Court in writ petition No. 25/13 titled Kh. Abdul Hamid v. Azad Jammu & Kashmir Govt. & 5 others dated 05.04.2013. This Court after deep deliberation on the Government instructions declared appointment of Ch. Muhammad Aslam as Chairman AKMIDC, on contract basis, as unlawful which view was upheld by the apex Court in the supra case.
12. A perusal of impugned notification dated 29.11.2012, reveals that no reason whatsoever has been shown by the official respondents nor any exigency is pointed out for making the appointment of private respondent in contravention of the law, therefore, on the basis of law laid down by the apex Court on the given point, in case of Ch. Muhammad Aslam supra the appointment of the said respondent cannot be saved.
13. The contention of the learned counsel for private respondent, Mr. Abdul Rasheed Abbasi, that Government instructions contained in notifications dated 20.02.2010 and 03.05.2010 are not covering in the definition of statutory law is misconceived. The point was considered by the Hon'ble Supreme Court in case titled Azad Government & 2 others v. Muhammad Naseer Chaudhry and 2 others. [2010 SCR 186). At page 195 of the report it was held as follows:--- "A perusal of instructions reveals that these instructions have been issued for the particular cases when the number of posts to be filled in is less as compared to the number of administrative units.
The instructions contain that if the number of posts is less that the administrative units then the process of selection shall be completed on the basis of open merit and the candidates to come on merit shall be appointed. It is also laid down in the instructions that whenever a candidate on open merit is appointed, his seat/post shall be deducted from the quota of relevant district. The instructions further provide that if more then one candidates from one district have qualified the test and interview, only one candidate shall be appointed from the said district and the candidate in total merit, who comes next from any other district shall be appointed for the remaining posts."
14. The next contention of the learned counsel for private respondent that petitioner is not senior most in the Department, therefore, is not an aggrieved party to file the instant writ petition is also baseless. A perusal of seniority list and attestation of the concerned Department appended with the replication makes it crystal clear that he is senior most Officer of grade B-20 and his seniority is also undisputed.
15. Another contention of the learned counsel for private respondent that petitioner can be promoted against the post of Director General Private Power Cell B-20, who is also holding the above grade on officiating basis, therefore, he is not an aggrieved party is also not tenable. An officiating promotion is merely a stop-gap-arrangement which does not confer any right of promotion on regular basis, to the incumbent, as visualized by rule 13 of the Azad Jammu & Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977. It is further observed that neither any record pertaining to the above-mentioned post nor rules were provided, hence, no findings can be given about the said post. Be that as it may, according to Departmental Statutory Rules dated 01.11.2007 referred to and relied upon by the petitioner, postulates first mode for promotion on the basis of seniority-cum-fitness from amongst Superintending Engineer/Director Electricity/Hydro Electric Board BPS-19 having 17 years experience in BPS-17 and above. The petitioner has , rendered more than 24 years service in the Hydro Electric Board and is on the top of seniority list of his cadre and Technical officers, who is eligible to be considered for promotion against the disputed post on the basis of the above-mentioned Rules, hence, categorically covering in the definition of an aggrieved party.
16. Another contention of the learned counsel for private respondent that keeping in view the provision of Departmental Statutory Rules promulgated vide notification dated 01.11.2007, the Government notifications dated 20.02.2010 and 03.05.2010 are not applicable in the instant matter is also misconceived. As private respondent was re-appointed on contract basis, therefore, the above-mentioned notifications pertaining to re-employment/contract employment are strictly applicable in the given case.
17. The last contention of the learned counsel for private respondent, Mr. Abdul Rashid Abbasi, that petitioner is a civil servant, therefore, the impugned notification dated 29.11.2012, pertaining to re- appointment of private respondent cannot be challenged by him in writ jurisdiction. The contention is not accepted for two-fold reasons. Firstly that grievance of the petitioner is against the impugned notification dated 29.11.2012, whereby private respondent was appointed as Managing Director Hydro Electric Board B-20, on contract basis. The contract employee is not covering in the definition of Civil Servants, as visualized by Section 2 of the Azad Jammu & Kashmir Civil Servants Act, 1976, which is reproduced as under:--- "2(b) "Civil Servant" means a person who is appointed to any service or holds a civil post in service of Azad Jammu & Kashmir employed in connection with the affairs of the State, but does not include:- A person who is on deputation to the service of Azad Jammu & Kashmir in connection with the affairs of the Government, from the Council or the Federation or any Province of Pakistan or Authority;
(ii) A person who is employed on contract, or on work-charge basis, or who is paid from contingencies;
(iii) A person who is a Worker' or 'working' as defined in the Factories Act, 1934 (XXV of 1934) or the Workman's Compensation Act, 1923 (VIII of 1923)."
(Underlining is mine)
A bare reading of sub-clause (ii) of clause (b) of Section 2 postulates that a person who is employed on contract, or on work-charge basis, or who is paid from contingencies is not included in the definition of Civil Servant. The appointment of a contract employee couple with direction can only be challenged through writ jurisdiction.
The other reason is that petitioner solicited direction in the nature of mandamus for placing his case before the concerned Selection Board for promotion against the disputed post and for implementation of Departmental Statutory Rules promulgated vide notifications dated 01.11.2007. It is by now settled principle of law that direction cannot be issued by the Service Tribunal. The instant point came under consideration before the apex Court in case titled Abdul Khaliq v. Zaheer Ahmed & 4 others (PLJ 2000 SC (AJ&K) 165), wherein at page 66 it was held as follows:- "In our view the direction reproduced above has been given by Service Tribunal without legal warrant. The powers of Service Tribunal are given in sub-section [1] of Section 5 of the Service Tribunals Act which reads as follows: .
"5. Power of Tribunals.-(1) A Tribunal may, on appeal, confirm, set aside, vary or modify the order appealed against."
The phraseology of the legal provision reproduced above shows that the. Tribunal can only act on an appeal and has no suo motu powers to issue any direction or pass any order. After finding that the appeal filed by Zaheer Ahmed was not maintainable no power was left in the Tribunal to issue any direction. It is also clear from the provisions reproduced above that the Tribunal may confirm, set aside, vary or modify an order against which appeal has been filed before it. The direction given by the Service Tribunal is not covered by any of the actions mentioned above".
The aforesaid view was reiterated by the apex Court in case reported as Dr. Zafar Ahmed Khan v.
Azad Government & 4 others (2002 SCR 247), wherein at page 253 of the report it was held as under:--- "However, the Service Tribunal, instead of directing the concerned authority to send the names of both, Dr. Zafar Ahmed Khan and Dr. Shabbir Ahmed, to the Selection Board, issued a direction in terms that a supernumerary post should be created on which Dr. Zafar Ahmed should be promoted from 26.12.1996. The learned counsel for the parties agree that there is no provision in law for the time being in force empowering the Service Tribunal to issue such a direction."
The same view was expressed in case titled Azad Govt. & 3 others v. Farhat Shaheen (2007 SCR 62), wherein at page 66 of the report it was held as follows:--- "As for the contention of the learned counsel for the appellants that the Service Tribunal has the jurisdiction in the instant matter and the High Court has no jurisdiction to issue writ is concerned, it has no substance because in the instant case it was averred by the respondent in the writ petition that she has been recommended by the Selection Board whose recommendations are not being acted upon, therefore, a direction may be issued to the appellants (respondents) that they should act upon those recommendations. The Service Tribunal has no jurisdiction to issue such kind of direction. The jurisdiction conferred on the Service Tribunal is against a final order. Under Section 4 of the Service Tribunals Act, an appeal can be filed against the final order of the departmental authority pertaining to terms and conditions of service. In the present case a direction was sought against the authority to issue formal notification. This direction can only be issued by the High Court under Section 44 of the AJ&K Interim. Constitution Act."
18. The contention of the learned counsel for official respondents, Syed Hazoor Imam Kazmi, that due to non-joinder of Scrutiny Committee and concerned Selection Board the instant writ petition merit dismissal because of non-joinder of necessary party is also not tenable, which is hereby repelled. The petitioner has not solicited any relief against Scrutiny Committee and the Selection Board concerned. The claim of petitioner is that appointment of private respondent No. 6 on contract basis was made without recommendation of Scrutiny Committee and his case for promotion against the disputed post be directed to be placed before the Selection Board concerned, therefore, both Scrutiny Committee and Selection Board are neither necessary nor proper party in the given case.
19. The crux of above discussion is that contract appointment of private respondent Mushtaq Ahmed Gorsi, against the post of Managing Director Hydro Electric Board B-20, through the impugned notification dated 29.11.2012, is hereby declared as without lawful authority, hence, set aside. The respondents No. 2 and 3 are directed to place the case of petitioner alongwith 2 other eligible officers from amongst Superintendent Engineer/Director Electricity/Hydro Electric Board, on the basis of seniority-cum fitness, before the concerned Selection Board for consideration to be promoted against the above post strictly in accordance with Statutory Rules promulgated vide notification dated 01.11.2007. The costs shall follow the eventualities. Writ accepted. .