1. This declaratory suit has been brought under the following circumstances : The plaintiff after passing his M.Sc. from the Punjab M. Y. University secured a Doctorate with highest distinction (Tres Saraf, Honorable) in Bio-Chemistry from the Faculty of Sciences of Poitiers, Paris, in 1964. In November 1964 he was appointed, on ad hoc basis as Lecturer in Chemistry on a starting salary of Rs,750 per month in the scale of Rs, 250-20-450/25-600/25-750. He was allowed this higher start by the Public Service Commission in consideration of his high foreign qualifications. The appointment was finally approved by the Public Service Commission on the 31st of March 1965 as is apparent from the following extract of the Commission's proceedings : "Dr. Sayed Nazir Shah is already working against one of the posts on ad hoc basis. The Commission approved his appointment on regular basis. Dr. S. N. Shah holds a Doctor's degree in Chemistry and has worked in Azad Kashmir Education Department in the past. In view of his high academic qualifications and foreign degree, the Commission recommended that Dr. Shah may be accommodated against one of the posts in the scale of 450 --50--1,000 reserved for a direct recruit. The Commission also decided that the pay of Rs, 730 P. M. should be treated as basic for purposes of determining the pay admissible to him on coming into force of the revised prescribed scale of pay of Rs, 45 '-501,000."
2. On the 9th of September 1965 the following order was issued from the office of the Secretary, Education to the Director of Education :-- ' I am directed to convey the sanction of the Government to the appointment of Sayed Nazir Shah as Lecturer in Chemistry in Degree College, Mirpur, at a starting pay of Rs, 850 P. M. in the scale of Rs, 450-40-650/50-1,000 with effect from the date he joined his duties. As such Council Order No, 1/50 is relaxed in this case."
3. Vide Government Order No, Gen/1230-39/ES/66, dated 12-12-1966 the Government granted sanction to the promotion of eight lecturers then working in the class II scale of Rs, 350 --30 -- 500/40 --900 to class I Junior scale of Rs, 450-40-650/ 50-1,000 as per recommendation of the Public Service Commis-sion. This Government Order was to take effect from the date of its issue.
4. Then on the 21st of July 1970 the following letter which is the bone of contention in the present suit was issued by the Secretary Education to the Accountant-General and others : "In partial modification of Government Order No, GEN/ 46/1230-34/ES/66 dated 12-12-1966 I am directed to convey the sanction of Azad Government of the State of Jammu and Kashmir to the promotion of the following lecturers of the Education Department to class I Junior scale with effect from 1-7-1963, on the recommendations of the P. S. C. contained in their letter No, 578.80/69 dated the 25th of October 1969 : 1.Mr. Mohammad Yusuf Choudhry.
5. 2.Mr. Abdul Aleem Siddiqui.
6. 3.Mr. Abdur Razaq.
7. 4.Mr. Shabir Ahmed Tehiri.
8. 5.Mr. Aziz Ahmed.
9. 6.Mr. Mohammad Akram Tahir.
10. 7.Mr. Mohammad Rafiq.
(2) The Azad Government of the State of Jammu and Kashmir is further pleased to create a supernumerary post of Junior class I scale in the Education Department from 18-11-64 (i,e, from the date of his appointment class I Junior) to 31-1-1966 to regularize the appointment of Doctor Nazir Shah Lecturer in Chemistry."
11. The plaintiff's grievance is that this Government Order has adversely affected his seniority because seven officers enumerated above have been granted class 1 Junior scale so retrospectively as to have made all of them senior to him although, in fact, he was senior to them as he had been actually working in class I Junior scale since his appointment in September 1964. His claim is based on rule 24 of the Kashmir Service Regulations under which the date of the first appointment and the grade, category, class or service of a civil servant determines his seniority thereto. His case is that the Government Order in question has been passed in clear breach of this Rule.
12. Amongst various pleas raised by the defendants one relates to jurisdiction of the civil Court to entertain the suit. The following preliminary issue was, therefore, framed for determination : ' Is the suit not cognizable by Civil Court ? 0. P. D." I have heard the learned counsel for the parties.
13. Civil Courts have jurisdiction to hear all suits of civil nature except those whose cognizance is either expressly or by clear implication barred. That is why it is laid down in numerous authorities that every presumption should be made in favour of the jurisdiction of a civil Court and the burden of proving ouster rests heavily upon him who advances such ouster.
14. Is this Court barred from granting the plaintiff the requisite declaration if he is found entitled to it ?
15. There is no express bar against cognizance of such a suit by this Court because :--
(i) The Constitution Act known as the Government Act of 1970 is absolutely silent about the Services as it is silent about many other vital matters such as Fundamental Rights etc. etc. It simply does not deal with them. Same was the case with the Government Act of 1968 which was in force at the time when the order under dispute was passed.
16. (ii)The Rules of Business in force now or those in force before, are also absolutely silent on the subject. They too did not deal with the services as such.
17. (iii)There is nothing in the Kashmir Service Regulations which could be said to expressly bar cognizance of such as a suit.
18. It was perhaps the case of the Government and the other defendants that the cognizance was barred by implication and in this connection they referred to a number of rulings which, however, do not at all lay down that the Civil Courts have no jurisdiction to entertain such a suit. I shall deal with these rulings presently.
19. (1)PLD 1957 Azad J & K 33. The Inspector-General of Police was discharged from service and on a suit filed in the High Court a declaratory decree was granted in his favour by Khan Abdul Hamid Khan, J. reported as PLD 1957 Azad J & K 15 holding that the Government servants in Azad Kashmir did not hold office at the pleasure of the Government in the sense that they could not be suspended, removed or dismissed without sufficient reasons. This decision was reversed by the Division Bench which held that the Public Servants held office at the pleasure of the President but at the same time the Bench held : "Unless of course there are rules in the nature of constitutional safeguards to restrict the power of the Head of the State regarding the mode in which such a removal may be brought about or regarding the person who may order the removal. Breach of any of these safeguards, if any, would give a right of action to the aggrieved civil servant."
20. It will thus be found that the Court has nowhere held that a civil servant who has been removed from office could under no circumstance seek redress from the civil Court. On the other hand the authority lays down that if any rules in the nature of constitutional safeguards were breached, the aggrieved civil servant had a right of action. It is a different matter whether the civil servant has a cause of action or not ; that is something distinct from the question of jurisdiction. If the Court decides that he had no such cause of action it means that it has the jurisdiction to decide as to whether he had or had not the cause of action.
21. (2)The next ruling is PLD 1966 Azad J & K 66. In this case a Senior Clerk in the office of the Accountant General brought a suit claiming that he was entitled to promotion in the higher cadre of the service on account of his seniority under the Kashmir Service Regulations. The suit was contested by the Government. A decree was granted in his favour by the trial Court and on a revision filed in the High Court by the Government it was held :-- "In this view of the matter I am constrained to agree with the learned counsel for, the respondent that where there has been a glaring departure from the prescribed procedure, civil Courts must step in and grant the relief of the declaration claimed by an aggrieved public servant. It does not stand to reason that the law can be so rigid as to deprive an aggrieved person of his right to seek justice from a Court of law."
22. This ruling was expressly overruled in PLD 1968 Azad J & K 64 by a Division Bench which included the learned Judge who decided the earlier case but a perusal of the judgment shows that there was no occasion for overruling the earlier authority. In this case the plaintiff brought a suit for a declaration that a Government order which according to him had degraded him from non- gazetted class I to non-gazetted class II was inoperative as against his rights and that he was entitled to be placed in the same class and scale of pay as that allowed to the office Superintendents of other departments under the same Government order. The suit was dismissed on merits and an appeal to the High Court also failed on merits. A perusal of the judgment would clearly show that there was no occasion at all for overruling the earlier authority because :-- (i)The question of jurisdiction was subject of an issue and the District Judge had decided it in favour of the plaintiff-appellant. This is what the learned Judges of the Division Bench say : "Issues 2, 3 and 4 pertaining to the jurisdiction of the Court (Issue No, 2) and applicability of the doctrine of estoppel to the suit of the plaintiff and the limitation have been decided by the learned District Judge against the defendant. As no appeal or cross-objection has been filed by the defendant against these findings we would take it for granted that the defendant-respondent was satisfied with them; as such their correctness cannot be called into question during the present proceedings."
23. (ii)The High Court held that the question of legal status as involved in the earlier ruling, was not involved in this case because the order challenged by the plaintiff-appellant far from having reduced him in rank, resulted in his enhanced pay.
24. (iii)The Court also held that no question of promotion or seniority was involved because it was not proved that he held the grade of non-gazetted class I before the Government order was issued and further held that seniority is determined not by comparison with services in other departments but in the same department.
25. The Court has, no doubt, held by way of obiter that breach of terms relating to conditions of service provided in the rules framed by the Government were not actionable. This has pointed out earlier, relates to the question of the existence or otherwise of a cause of action but has nothing to do with the question of jurisdiction as such. As I am not at present seized with the determination of the question of the cause of action I would not like to say anything about it for the time being. It may, however, be pointed out that in a subsequent ruling reported as PLD 1969 Azad J & K 1 a Division Beach of this Court took a different view and held that if an order reverting a directly recruited Sub- Inspector of Police to the Post of Head Constable was passed in violation of the rules as was held to have been the position in the case, the aggrieved person had a right to sue and the civil Court had in the circumstances jurisdiction to grant appropriate relief.
26. It is thus clear that the trend of authorities in Azad Kashmir is in favour of the existence of jurisdiction in service matters.
27. The learned counsel for the defendants cited two authorities from Pakistan but their examination shows that they do not support their contention. One of these rulings is PLD 1962 SC 367. In this case the petitioners were a group of members of the Pakistan Police Service who were appointed as a result of an examination held in 1949. Among the respondents alongwith the Government were 11 members of the same service who were appointed otherwise than by examination. It was a writ of mandamus seeking the following reliefs :-- (i)Not to treat the respondents as members of the Pakistan Police Service.
28. (ii)To cancel the orders whereby the respondents had been given seniority over the petitioners.
29. (iii)To make orders on the representation of the petitioners against the said orders.
30. The petition was dismissed because :-- (i)It was conceded by the counsel for the petitioners as a matter of fact that there was no statutory rule of seniority in the case.
31. (ii)The matter had not yet been fully decided by the Government but was still under its 'active consideration'.
32. (iii)As held by the learned Chief Justice :- "The power of issuing a mandamus to the Government is one which a Court, in exercise of high responsibility, would not exercise unless it was satisfied that the action (or in action) is clearly in violation of something having the force of law."
33. Similarly in the Karachi case reported as PLD 1967 Kar. 22, the question of seniority had yet to be determined by the Government. To quote from the ruling :- "On behalf of Government, their Standing Counsel Mr. Shah Jamil Alam had given us an undertaking at the Bar that this question of the confirmation of the petitioners will not be re- opened and that the petitioners will at all times be taken to have been confirmed in Class I Service.
34. The only point that remains is that the question of seniority as between the petitioners and the respondents should be re-determined by Government and this is a relief that the petitioners themselves are after. Since, therefore, this question is still outstanding and the seniority of the petitioners has to be determined by Government, we are reluctant to express ourselves on the merits of the case relating to this question of seniority lest the case of either the petitioners or the respondents may be prejudiced."
35. On the other hand one may cite PLD 1963 Dacca 211 and PLD 1958 Lah. 472. In the Dacca case the plaintiff was given substantive appointment as Professor of Pathology, Dacca Medical College and put on probation for one year. After completing this period and continuing in the post, another gentleman was appointed in his place while the plaintiff was placed on supernumerary duty at the Medical College Hospital which had the effect of demoting the plaintiff to the job of Assistant Surgeon. Representations to the Government having failed, the plaintiff brought a suit in the Court of Sub-Judge III Court Dacca for a declaration that the orders in question were illegal and inoperative and that he was still Professor of Pathology. The relief was granted by the Court and the Government went in appeal to the High Court. The appeal was dismissed and the Division Bench ruled on the question of jurisdiction :- "It is surprising for us to hear an argument advanced by the learned Government Pleader that what has been done according to the departmental instructions and service rules, the civil Court has got no jurisdiction to inquire. Our view is that, whether those departmental instructions and service rules have any force of law or not, civil Court has got jurisdiction to see, even then, whether the authority has acted according to the departmental instructions and the service rules, and it cannot be said that civil Court has got no jurisdiction to inquire and deal with what the Government has done following the service rules and departmental instructions."
36. In PLD 1958 Lah. 472 two civil suits were filed, one by one Lt. Col. Z. A. Mazari and another by one Major Dr. Ashiq Ali Bokhari challenging orders relating to their discharge or retirement by the military authorities. The Senior Civil Judge declined to determine the preliminary objection with regard to jurisdiction on the ground that there wasn't sufficient material on the record. The Government went in revision to the High Court. Both the suits were dismissed. What actually happened was that the learned Judge held that the plaintiffs held office at the pleasure of the crown and that the Army Act did not make any alteration in the terms of the engagement of military service. Regarding jurisdiction the learned Judge held :- "23. There is a matter which requires explanation. It is stated in some judgments that the civil Courts have no jurisdiction in the matter. I do not think that is the correct way to put the matter. The civil Court decides against the military servant because of the terms of his engagement. The decision of the Court is that he has, on account of these terms, no right to continue in service. When a Court decides that a person does not possess a particular right, which right is of a civil nature, it is not holding that it has no jurisdiction to decide. When the Court gives a finding as to the term of engagement and determines that the civil right claimed by the plaintiff does not vest in him, the Court has exercised jurisdiction and has given a decision on the merits against the plaintiff.
37. The correct proposition is that there is no cause of action, that no right has been infringed.
38. Whenever the Court finds that a person does not possess the civil right that he claims, the Court has exercised its jurisdiction and the case is not one of lack of jurisdiction. It is only when the Court says to the plaintiffs "you may have the right that you claim but this Court is not the proper forum to determine that question", that the Court refuses to exercise jurisdiction. For instance if a dispute relating to election in the Provincial Assembly were brought to Court this will be the answer that the Court will give and that will be a true case of lack of jurisdiction.
39. 24.Let us take the example of a private employer who has servants whom he can according to the terms of their contract dismiss at pleasure. If the employees come to Court against dismissal, the Court will have jurisdiction to decide the dispute though it will find that the right claimed does not exist.
40. 25.This confusion between absence of jurisdiction and absence of cause of action is due probably to the fact that the dismissal being in disregard of statute or rules can be said to be illegal, so that the Court can be deemed to be saying to the servant who files a suit "whether the order is legal or illegal is no concern of ours" in which case it would mean as if the Court is refusing jurisdiction. The correct position is that the order though it is not in accordance with a statute or rules does not infringe a legal right of the plaintiff. Another reason for saying that Court has no jurisdiction appears to be that the servant can have recourse to the higher officers or the Government so that it looks as if there is another forum for decision of a dispute. But that is not a forum for the decision of any civil right."
41. Therefore, ouster of jurisdiction of this Court not having been established, the issue is decided against the defendants.
42. The case will now come up on 2nd April 1971 for the settlement of issues.