' M. TABASSUM AFTAB ALVI, J. --- The captioned writ petition has been directed under Section 44 of Ihe'Azad Jammu and Kashmir Interim Constitution Act, 1974, whereby vires of notification dated 19.09.2012, pertaining to retirement of petitioner from the post of Primary Teachress Government Girls Primary.-School Chunenan of District Haftian Bala, alongwith appointment of private respondent No, 6 on contract basis against the disputed post through order dated 19.10.2012, has been Challenged for havingbeen issued without lawful authority.
2. The summary of the case is that petitioner is first class State Subject of Azad Jammu & Kashmir hails from District. Hattian Bala. The petitioner was appointed as Primary Teachress vide order dated 15.01.1981. It is stated that she has continuously been performing her duties with full devotion and entire satisfaction of high-ups/superiors and in the best interest of Education Department. It is maintained that petitioner alongwith others was unlawfully retired from service by Government- respondent vide impugned notification dated 19.09.2012. Against the said post occupied by petitioner, later on, official respondents appointed private respondent No, 6 on contract basis vide order' dated 19.10.2012. The petitioner has challenged vires of the impugned notification and appointment order of private Respondent No, 6, through the instant Constitution petition.
3. The writ petition has been resisted by official and private respondents through written statements on several grounds including preliminary objection that as petitioner is a civil servant, hence, against impugned notification and order the instant writ petition is not maintainable.
4'. The learned counsel for parties argued the case according to their respective pleadings.
5. After hearing the learned counsel for parties at length, I have perused the contents of writ petition and examined the appended documents. The petitioner was admittedly appointed against the post of Primary Teachress vide order dated 15.01.1981. However, petitioner before completing superannuation period was retired from the post of Primary Teachress, amongst others, on the ground that at the time of induction in service she was qualified as Middle pass who could not improve her qualification during 25 years, vide impugned notification dated 19.09.2012.
After retirement of petitioner private respondent No, 6 was appointed on contract basis against the post in question vide order dated 19.10.2012. The petitioner while considering herself aggrieved from the notification and order supra challenged vires of the same through the instant writ petition As per Section 4 of the Azad Jammu & Kashmir Service Tributes Act, 1975, an alternate, adequate and efficacious remedy was available to petitioner to challenged the above-mentioned notification and order before the Service Tribunal. The Section supra is reproduced as follows --- "Appeal to Tribunals.--- (1) Any civil servant aggrived by any final order, whether original or appellate made by a departmental authority, in respect of any of the terms and conditions of his service, may, within [ninety] days of the communication of such order to him or within six month of the establishment of the appropriate Tribunal, whichever is later, prefer an appeal to the Tribunal: Provided that:---
(a) [--------------------
(a) [--------------------
(c) no appeal shall lie to a Tribunal against an order or decision of a departmental authority made at any time before the 1st July, 1969: ' Provided further that question relating to eligibility, mala fide and coram non judice may be decided by the Tribunal.
' An identical point came under consideration before the apex Court in case titled The Accountant General and others v. Zaman Hussain Khan [1993 SCR 259]. Wherein at page 273 of the report it was held as under--- ".... The words "an order in respect of any terms and conditions" are words of liberal import and a restricted construction is not possible. It may be added that it is significant that the main Section lays down an appeal lies against a "final order" but in the explanation the reference is to "order" in contradistinction to "final order". This further clarifies that the law-maker never intended to laid down in the explan'ation that "final order" from which an appeal was to be filed should have been competently passed in order to qualify it to be appealable. Thus, the liberal interpretation of the term "departmental authority" would include any authority which can pass an order in respect of any terms and condition. In Azad Jammu & Kashmir Government v. Syed Zaman All Shah [PLD 1991 S.C. (AJ&K) 57] it was held that terms and conditions are scattered but all the matters which form part of Chapter-lI of the Azad Jammu & Kashmir Civil Servants Act are decidedly terms and conditions of service. The matters which are included in Chapter-II are appointment, probation, confirmation, seniority, promotion, posting, transfer. Termination of service. Retirement from service, removal from service, reversion to lower grade or service, re-employment. Conduct, efficiency and discipline, pay, leave pension, gratuity provident fund and group insurance. The authorities who are competent to pass appropriate orders in respect us terms and conditions have been specified under different rules and delegation orders. Similarly the authorities competent to award penalties are specified in the Civil Servants (Efficiency and Discipline) Rules. The "authorized officers" have been vested with authority to impose minor penalties while major penalties have been reserved for "the authority". Every authority who can pass an -order in respect of any of these terms and conditions is a departmental authority within the meaning of explanation appended to Section 4 of the Service Tribunals Act. Therefore, if an order has been passed by any of these authorities appeal would lie to the Service Tribunal.. If an authority transgresses its jurisdiction and passes an order without jurisdiction or imposes a major penalty which cannot be imposed by him, it will be a good ground on which an, appeal before the Service Tribunal can be based,"
' The point, pertaining to terms and conditions of service, coupled with jurisdiction: of the High Court again under consideration before 'the apex 'Court in, case titled:- ammad tariq Amin and 3 Others. v.:Muhammad Hussain and others 11999 SCR 3171. At page 321 of the report, it was observed as follows:- "Without advertising to the question of determining the seniority of the parties the law stands settled that the matter which involves terms- and conditions of a civil servant, the jurisdiction of the High Court stands totally ousted in view of bar contained in sub-section (2) of Section 47 of the Interim Constitution Act. The finding thus recorded by the High Court being in contravention of the dictum laid down by this Court in various cases relied by the learned counsel for the appellants is bad in law which is hereby set aside. In our view there is a marked distinction between those cases in which the High Court merely issues a direction to the Government functionaries or the lower Tribunals to decide a case within a certain time and those cases in which a direction is given on the basis of-which a certain civil servant becomes senior toy those who challenge his seniority." {{BLUR PAGE}}
7. According to .Sub-sectioit (2) of Section '44 of the Azad Jammu & Kashmir Interim Constitution Act, 1974, writs of mandamus, prohibition and certiorari cante issued on the application of any aggrieved party, if no,= other adequate remedy is provided by law. The relevant:extract is reproduced as under:--- "(2) Subject to this Act, the High Cotirt[mayrifit- is satisfied that no other adequate remedy,proVrded):_ by law
(a) - .On the application of any aggrieved party;rnake an order:-;--- -7 directing a person performing .Fungtidns .In....connectiOn-.With the affairs of Azad JarriM0,4 ,KasbMir or local ;authority- to refrain from dOing that which- tie is not do: or to db that b*iaw to do; or declaring that any act -done or proceedings taken [..,.] by 'a person performing functions in connection with the affairs of the - State or a local authority has been done or taken without lawful authority and is of no legal effect, (b)
(I)
(ii)
S(,4 West Civil La'v Reports (C.L.R.) Vol. XV The writ petition filed by petitioner is, therefore, hit by sub- section (2) of Section 44 of the Interim Constitution Act, 1974, hence. Bad in law. {{BLUR PAGE}}
8. The learned counsel for petitioner has relied upon admission order of this Court passed in consolidated cases titled Mst. Majda Khatoon and others v. Azad Govt. & others. Dated 08.11.2012. A perusal of order supra reveals that all the petitioners in the given cases solicited writ of prohibition against Azad Govt. & others, whereas the instant writ petition has been filed by petitioner for setting aside impugned notification dated 19.09.2012 and order dated 19.10.2012 respectively, therefore, the above-mentioned admission order is not helpful to petitioner as having no nexus with the instant case.
9. The nub of above discussion is that finding no substance in the instant writ petition, the same is hereby dismissed and consigned to record Consequently, status-quo order granted on 19.11.2011 is recalled.