' SARDAR ABDUL HAMEED KHAN, J.--- This is a writ of certiorari filed under Section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, whereby the vires of a Government Notification bearing No,S&GAD/ MGA21/(12)2013(Gazetted-1, dated 3-5-2013 has been challenged and it has been prayed the said Notification whereby respondents Nos.6 and 7, the Officers of Grade-17 of Local Council Service on deputation basis as Managers (BPS-17) in Local Government and. Rural Development Department for the fixed term for one year.
' Miss Kokab-Al-Saba-Roohi, the learned Advocate for petitioner while arguing the case for admission of the petition for regular hearing reiterated the facts and grounds enumerated in the writ petition and contended that if the impugned order is implemented, the petitioners will be disturbed, hence the order is illegal and without lawful authority. She further contended that according to the list of Departments giver in the first Schedule of the Rules of Business item Serial No,19, is clear that the Local Government and Rural Development Department is a different department then the Local Council Service, thus the impugned order of transfer/deputation of the respondents Nos.6 and 7 in the Department of petitioners is against law, against spirit of Rules of Business and contrary to the provisions of Constitution, whereby the basic right of the petitioners may be infringed. Hence the petitioners are aggrieved persons. It is further contended that the petitioners have no other alternate adequate remedy, but to invoke the constitutional jurisdiction of this court. Lastly, she prayed for admission of the petition as these points need consideration and detailed examination by this Court.
' After hearing the learned counsel for the petitioners, I have gone through the contents of the petition and the contents of the said Notification and the relevant provisions of Rules of Business referred by the learned counsel for the petitioners.
' The Item No,19 of first Schedule of Rules of Business, referred by the learned counsel for petitioners cannot be read in isolation rather this item has to be read with some other enabling provisions of these Rules, like section 2, wherein the terms "Department" is defined The Schedule II of the Rules of Business which relates to distribution of Business among Departments, Item serial No,19, clauses A and. G, wherein the "Local Council" and "Local Council Service" have been included in the said department.
' Now, referring to Azad Jammu and Kashmir Civil Servants Act, 1976 Chapter 2 read with Rule 7 of Azad Jammu and Kashmir Appointment and Condition of Service Rules, 1977, while these provisions of law are read with section 47 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, the conclusion is crystal clear, that writ in such-like cases is not competent. The grounds raised in the petition, relates to terms and conditions of service, for which the A petitioners have other alternate adequate remedy under relevant law, resultantly, the petitioners are not aggrieved persons too. In the above situation, it deems proper to reproduce the supra mentioned provision of law for sake of convenience:---
1. Rules of Business 1985 section 2 definitions
(i) xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx
(ii) xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx *(ix-a) 'Department' means a self-contained Administrative unit in the Secretariat responsible for the conduct of Business of Government in a district and specified sphere, and declared as such by Government.
'Schedule-1 'List of Department.
1. xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx
2. xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx 19.
Local Government and Rural Development Department1. Local Government and Rural Development 2.
Election Commission Local Bodies1. Director Local Government and Rural Development. 2.
Election Commissioner Local BodiesAzad Jammu Kashmir Local Government Board ' Schedule-II Distribution of Business among Departments
1. xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx
2. xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx
19. Local Government and Rural Development Department.
(a) Local Cbuncils
(b) Local Council Service including Engineering Health and Sanitation under the Local Bodies.
2. The Azad Jammu and Kashmir Civil Servants Act, 1976.
' Probation. --- (1) An initial appointment to a service or post referred to in section 4 not being an ad-hoc appointment, shall be on such probation and for such period of probation as may be prescribed.
(2) Any appointment of a civil servant by promotion or transfer to a service or post may also be made on such probation and for such period of probation as may be prescribed.
(3) xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx
(a) If he was appointed to such service or post by initial recruitment, be discharge; or
(b) if he was appointed to such service or post by promotion or transfer, be reverted to the service or post from which he was promoted or transferred and against which he holds a lien or, if there be no such service or post, be discharge.
3. The Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977.
' Probation.---(1) A person appointed to a post in a grade against a substantive vacancy shall remain on probation for a period of two years if appointed by initial recruitment, and for a period of one year, if appointed otherwise: ' Provided that the appointing authority may extend the period of probation by a further period not exceeding two years in all.
4. The Azad Jammu and Kashmir Interim Constitution Act, 1974.
47. Administrative Courts and Tribunals.--- (1) Notwithstanding anything herein before contained, the Council in respect of matters to which its executive authority extends, and the Assembly in respect of matters to which the executive authority of the Government extends, any by Act provide for the establishment of one or more Administrative Courts or Tribunals to exercise exclusive jurisdiction in respect of:--
(a) matter relating to the terms and conditions of persons who are or have been in the service of Azad Jammu and Kashmir including disciplinary matters;
(b) matters relating to claims arising from tortuous acts of the Council or the Government or any person in the services of Azad Jammu and Kashmir of any local or other authority empowered by law to levy any tax or cess and any servant or such authority acting in the discharge of his duties as such servant.
' It has been held time and again by the apex Court in many cases, that the disputes relating to the terms and conditions of the Civil Servants have been given exclusively within the jurisdiction of Service Tribunal in the light of section 47 of the Interim Constitution Act, 1974.
' The following case-law of the jurisdiction of the apex Court on this point is reproduced hereunder to elucidate the matter:---
(1) 2004 PLC (C. S.) 990 case titled Abdur Rasheed v. AKMIDC and 3 others.
' The dispute relating to the terms and conditions of the civil servants have been given exclusively within the jurisdiction of the Service. Tribunal in the light of section 47 of the Azad Jammu and Kashmir Interim Constitution Act, 1974. In section 4 of the Service Tribunals Act, 1975, a civil servant who holds a civil post in the service of Azad Jammu and Kashmir or is employed in connection with the affairs of the State can raise his grievance in respect of his terms and conditions through an appeal before the Service Tribunal.
(2) 1995 SCR 159 case titled Azad Government and 2 others v. Reaz Ahmed Executive Engineer. ----Section 47---This section clearly and totally prohibits the High Court from entertaining any proceeding in respect of a matter to which the jurisdiction of the Service Tribunal extends. ----S. 3(2)---Service Tribunal has exclusive jurisdiction in respect of maters relating to the terms and conditions of a civil servant including disciplinary matters. ----S. 4---If an order of punishment is passed in respect of a civil servant he has a right of appeal to the Tribunal. The fact that a final order has not been passed so far does not vest jurisdiction in the High Court to interfere in a matter which is otherwise beyond its jurisdiction.
(3) 1995 PLC (C.S.) 182 case titled Muhammad Latif Khan v. Sarwar Hussain and others. --- After careful perusal of the aforesaid extracts we have come to the conclusion that all orders, whether they have been passed with jurisdiction or without jurisdiction are appealable to the Service Tribunal. Once the jurisdiction is barred either implicitly or impliedly, particularly be constitutional provision, the ouster clause becomes absolute and any departure or deviation from it is not permissible under law. It would, therefore, be futile to argue that when an order is void or is mala fide or is in the nature of corum non judice the High Court can entertain a petition under section 44 of the Interim Constitution Act even though the matter is within the jurisdiction of the Service Tribunal set up under the relevant law.
' The facts of the matter is that the Tribunal is possessed with powers which are much wider than those exercisable by the High Court under writ jurisdiction. The role of the High Court under the supervisory jurisdiction is limited and relief can be granted only if the order passed suffers from such patent illegality that it can be called an order without lawful authority and of no legal effect.
On the other hand the Service Tribunal can set aside or vary an order passed by any departmental authority on entirely different grounds which admittedly cover wider range. Similarly they questions of fact can rarely be gone into by the High Court which are open to adjudication by the Service Tribunal. So the result is that the jurisdiction of the High Court stands totally ousted and a writ petition cannot be entertained.
' Keeping in view the above legal position, the petition entails dismissal because other adequate and efficacious remedy is available to the petitioners, meaning thereby, that the petitioners are not aggrieved persons to invoke the extraordinary constitutional jurisdiction of this Court.
' Thus, in view of above conclusion, this writ petition is dismissed in limine.