The supra titled writ petition has been addressed under Section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, whereby writ in the nature of prohibition is solicited against respondents jointly and severally restraining them from abrogating notification dated 10.6.2014, whereby petitioner was appointed by transfer against the point of Senior Teacher B-16 in Government High School Chanari, Tehsil and District Hattian Bala.
2. The summary of the case is that petitioner is permanent employee of Education Department and performing his duties as Senior Teacher in Government High School Chanari, Tehsil & District Hattian Bala. It is averred that after completing three years period at one station, as per transfer policy in the interest of Education Department, petitioner was posted as Senior Teacher B-16 in High School Chanari, Tehsil & District Hattian Bala, by the Government-respondent vide notification dated 10.06.2014, which was acted upon through joining report dated 12.06.2014. It is alleged that respondents under political pressure and with mala-fide intention, have determined to further transfer petitioner, although he has yet completed only about 06 months period at High School Chanari. The petitioner has filed the instant writ petition to restrain respondents jointly and severally from cancelling the aforesaid notification till completion of 02 years policy period as visualized vide Government notification dated 03.01.2013.
3. Raja Majid Khan, the learned counsel for petitioner, was asked that whether any proposal was framed by respondents regarding cancellation of notification dated 10.06.2014, he submitted that although no proposal has been framed, however, as per knowledge of petitioner, proceedings were initiated by respondents for abrogating the aforesaid notification, hence, submitted for admission of writ petition.
4. After hearing the learned counsel for petitioner, I have perused the contents of writ petition and examined the appended documents with utmost care.
5. A glance perusal of appended record reveals that petitioner was appointed by transfer against the post of Senior Teacher B,16 in Government High School Chanari, by the competent authority i.e. Government-respondent vide notification dated 10.06.2014. The petitioner alleged in Paragraph 4 of writ petition that certain proceedings were initiated by respondents to recall the aforesaid notification. However, no any proof was appended along with writ petition pertaining to cancellation of the supra notification. The writ petition, therefore, has been filed by petitioner merely on apprehension basis, that too without any documentary proof which is consisting of conjectures and surmises. It is settled principle of law that writ petition cannot be filed on anticipatory basis. An identical point was considered by the Hon'ble Court of Pakistan in case titled Muhammad Shafi and another vs. Ch. Ilam-ud-Din and others [1968 SCM R 317], At page 319 of the report, it was opined as under:- "There is nothing in this letter to show that a decision of any kind had been made. The contention of the petitioners, therefore, that the Government had decided to enforce the first notification for the period between 15.03.1963 to 19.11.1966, is not supported by any order to that effect on the record.
The challenge in that behalf, therefore, is premature and possibly an attempt to anticipate any action that the workers may take to enforce their claim for arrears on the basis of the first notification. The contention is that the employer is liable under Section 9 of the Ordinance to be prosecuted for payment at a rate lower than the rate declared under this Ordinance to be the minimum rate of wages and in such a case can also be made liable to punishment with imprisonment for a term which may extend to six months or with fine extending to Rs, 500/- or both and, therefore, there is at least, it is urged, a thereat of such penal action which gives the petitioners a cause of action to invoke the constitutional jurisdiction of the High Court. We are unable to agree. If and when the prosecution is started the petitioners will be entitled to raise it by way of a defence in that prosecution that the notification itself is illegal or ultra vires or unenforceable. Such an offence, it appears, is not cognizable under Section 10 of the Ordinance except upon a complaint by the Provincial Government or by a person authorized in that behalf by such Government. The petitioners have not adduced any evidence to show that any complaint of this kind, has ever been made. The High Court was, therefore, in our opinion, right in rejecting this contention, and so far as this Court is concerned it need only be said that at this stage this is an academic question."
"Underling is mine for emphasizing"
The same proposition came under consideration before the Lahore High Court, in case titled Muhammad Asaf vs. Small Business Finance Corporation through Branch Manager, Lahore Cantt.
And 07 others [2001 YLR 1891], wherein at page 1896, it was observed as under: "It is also settled principle of law that writ petition is not maintainable against apprehension as the law laid down in National Rerolling Steel Mills case (1968 SCM R 317(2)). Some of the petitioners have given surety at the time of sanctioning of loan to the respondents, in which the petitioners alleged, that respondents are harassing the petitioners. The writ petitions are not maintainable as the said petitioners did not attach a single document to show that respondents are harassing the petitioner in violation of mandatory provisions of law."
6. Even otherwise petitioner is admittedly a civil servant and in case of cancellation of his posting notification dated 24.12.2014, against Government Policy as visualized vide notification dated 03.01.2013, he has got an alternate remedy of filing service appeal before the concerned Tribunal as per law, therefore, the instant writ petition is accordingly bad in law.
7. The crux of above discussion is that finding no substance in the instant writ petition the same is hereby dismissed in limine and consigned to record.