' The supra titled writ petition has been addressed under Section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, whereby following relief is solicited by petitioners:-- ' It is, therefore, prayed on behalf of petitioners that a high prerogative writ may kindly be issued declaring the office order in respect of withdrawal of recommendations of Selection Board dated 08.06.2007 as illegal, based on mala-fide intention, without lawful authority and jurisdiction and may kindly be set aside. It is further prayed that respondents may very graciously be directed to issue the notification for promotion of petitioners in light of the recommendations of Selection Board No, III and approval of competent authority against the posts of Budget Officer B-17 and Budget Superintendent B-16. Any other relief which is just and proper in the estimation of this Hon'ble Court may also be granted to petitioners in the interest of justice."
2. Precise facts culminating into the instant writ petition are that Petitioner No, 1 is serving as Budget Superintendent B-16 and Petitioner No, 2 as Senior Auditor B-11 in Finance Department of Azad Jammu and Kashmir. It is claimed that a post of Budget Officer B-17 and three posts of Budget Superintendents B-16 were lying vacant in the Finance Department for promotion and in this regard a working paper for promotion of petitioners, along with others, was submitted before the Selection Board No, III on 11.12.2006. The Selection Board after consideration stood forward its recommendations for promotion of petitioners as Budget Officer B-17 and Budget Superintendent B-16 respectively to competent authority for approval. On the basis of the above recommendations of Selection Board, the authority accorded its approval for promotion of petitioners. The official respondents in collusion with each others promoted only one Mufti Muhammad Sajjad and Kh.
Khurshid Hussain vide notification dated 18.01.2007, however, failed to issue notification for promotion of petitioners despite recommendations of Selection Board and approval of the competent authority. It is alleged through amended writ petition that official respondents, later on for mala fide reasons, also recalled the recommendations of Selection Board through impugned office order dated 08.06.2007, hence, the petitioners constrained to file the instant constitutional petition.
3. The official Respondents 1 to 4 contested the writ petition by filing written statement, wherein it is stated that recommendations dated 11.12.2006 were manoeuvered by the petitioners and obtained vis-a-vis to law as at the time of meeting of Selection Board the disputed posts were not available, therefore, recommendations of the Selection Board were baseless, which were withdrawn through a decision of the Selection Board taken in its meeting held on 06.06.2007. It is averred that petitioners have not approached this Court with clean hands, hence, they are not entitled for discretionary relief of writ jurisdiction. It is further claimed that petitioners have filed the instant writ petition to protect ill-gotten gains, hence, they are not entitled for any relief. It is averred that keeping in view the provisions of General Clauses Act, 1897, the recommendations of Selection Board were rightly withdrawn. It is stated that matter pertains to terms and conditions of service of petitioners falling under the exclusive jurisdiction of Service Tribunal. The writ petition has also been resisted by private Respondent. No, 5 through filing separate written statement, wherein it is averred that no vacancy of Budget Officer B-17 was available for promotion of Petitioner No, 1 at the time of meeting of Selection Board. It is further stated that Petitioner No, 1 is only matriculate whereas qualification for promotion against the post of Budget Officer B-17 was Intermediate in accordance with provisions of Departmental Statutory Rules It is averred that Respondent No, 5 is Master Degree holder, who after advertisement of post, merit and recommendations of Public Service Commission was appointed as Budget Officer B-17 who is having 5 years meritorious service. It is urged that A.C.Rs, of Petitioner No, 2 were adverse, therefore, he could not be considered for promotion as Budget Superintendent B-16. It is further averred that recommendations dated 11.12.2006 of the Selection Board were unlawful, therefore, the same were rightly withdrawn and prayed for dismissal of writ petition.
4. Mr. Abdul Rasheed Abbasi, the learned counsel for petitioners vehemently argued that as recommendations of Selection Board were issued in favour of petitioners on 11.12.2006 and approval by the Finance Minister as being competent authority was also accorded on 05.01.2007, therefore, under Rule 20(2) of Azad Jammu & Kashmir Rules of Business, 1985, read with Section 21 of General Clauses Act, 1897, the same could not be withdrawn through the impugned order dated 08.06.2007.
The learned counsel further contended that adverse remarks of Petitioner. No, 2 were also expunged on 12.01.2007, therefore, no illegality was committed by the Selection Board, Respondent No, 4 while recommending the said petitioner on 11.12.2006. He maintained that for promotion process could be completed by the authority even before availability of post. The learned counsel pressed into service that qualification for the post of Budget Officer B-17 according to Azad Jammu & Kashmir Finance Department Rules, 1985, was Matriculate, hence, the impugned office order dated 08.06.2007, is unlawful as well as arbitrary which may be quashed. The learned counsel in support of his contentions referred to and relied upon the following case law:--
(i) Azad Govt. & 3 others v. Farhat Shaheen (2007 SCR 62); Moula Bux Khatian v. The Chief Secretary, Government of Sindh Karachi & 2 others (1996 PLC (SC) 312);
(ii) ' Public Works Department, Azad Jammu & Kashmir Government of State of Jammu and Kashmir, Muzaffarabad v. Azad Govt. Of the state of Jammu and Kashmir through Chief Secretary Muzaffarabad & another (PLD 2007 AJK 07).
' In case of Azad Govt. & 3 others, supra, it was held by the apex Court that Service Tribunal has no jurisdiction to issue direction. It was further held that an appeal can be preferred before the Service Tribunal against final order pertaining to terms and conditions of service.
' In case of Moula Bux Khatian, ibid, it was held by the Karachi High Court that apart from provisions of Section 21 of General Clauses Act, 1897, power on the basis of principle of locus poenitentiae was available to Government to rescind decisions till decisive step was taken.
' In case of Public Works Department, of State of Jammu and Kashmir, supra, it was held that Section 21 of General Clauses Act, 1897, would not apply to order of judicial or quasi-judicial authority vested with power to resolve controversy relating to rights of parties under special laws. It was further held that right of review was not available to Ombudsman, hence, review petition was declared as incompetent.
5. Ch. Muhammad Latif, the learned counsel for private respondent strenuously argued that at the time of recommendations of Selection Board dated 11.12.2006, the post of Budget Officer B-17 was not available, hence, the recommendations were obtained by practicing fraud of course by petitioners who were employees of the Finance Department, hence, the same were rightly withdrawn by the Selection Board. He maintained that due to adverse remarks of Petitioner No, 2, he was also not liable to be considered for promotion on 11.12.2006, whose adverse remarks were expunged on 12.01.2007, after the recommendations of the Selection Board. The learned counsel further submitted that against the impugned office order dated 08.06.2007, the petitioners could prefer an appeal before the Service Tribunal, therefore, writ petition is not maintainable. The learned counsel pressed into service that qualification for the post of Budget Officer B-17 according to Departmental Statutory Rules is intermediate, while Petitioner No, 1 is simple matriculate, therefore, he could not be considered for promotion against the disputed post of Budget Officer B-
17. The learned counsel while referring Rule 13 (3) of the Azad Jammu & Kashmir Rules of Business, 1985, submitted that only Services and General Administrations Department could initiate the proceedings for selection process pertaining to employees and officers of Finance Department, hence, the recommendations were void abinitio and submitted for dismissal of writ petition. The learned counsel in support of his contentions referred to and relied upon an unreported precedent of the apex Court titled Syed Rasheed Hussain Shah v. Azad Govt. & others (Civil Appeal No, 58/2011) decided on 31.01.2014.
' In Syed Rasheed Hussain Shah's case, supra, it was held by the apex Court that regarding terms and conditions of a civil servant writ petition is not maintainable.
6. Mr. Mushtaq Ahmed Janjua, the learned counsel for official respondents owned the arguments advanced by the learned counsel for private Respondent No, 5, Ch. Muhammad Latif and submitted for dismissal of writ petition.
7. After hearing the learned counsel for parties, I have perused the contents of writ petition, examined, the appended record and have given my earnest thought to the points advanced by the learned counsel for parties.
8. A contemplate perusal of record reveals that a working paper was prepared for promotion of inter-alia, disputed posts of Budget Officer B-17 and Budget Superintendent B-16, which was duly signed by Secretary Finance. The date seemed at the bottom of signature aM2.12.2006, which is in fact 22.11.2006. It was mentioned in the working paper that one post of Budget Officer B-17 and four posts of Budget Superintendents B-16 were lying vacant for promotion in accordance with Departmental Statutory Rules. It was also inserted in the working paper that post of Budget Officer B-17 was 100% promotion post. It appears that on the basis of the above mentioned working paper, both the petitioners were recommended by the concerned Selection Board No, III for promotion through circulation against the disputed posts of Budget Officer B-17 and Budget Superintendent B-16 respectively on 11.12.2006. The approval was also granted by the Minister Finance, as being competent authority, on 05.01.2007. However, during process of issuance of notification, some discrepancies were found by the Finance Secretary, therefore, meeting of Selection Board was summoned and ultimately recommendations dated 11.12.2006, were recalled in its meeting held on 06.06.2007, vide impugned order dated 08.06.2007. Though at the cost of repetition but it is reiterated that in working paper the post of Budget Officer B-17 was shown as 100% promotion post.
However, according to schedule appended with the Azad Jammu & Kashmir Finance Department Rules, 1985, the mode of initial recruitment was also provided. In working paper the name of only petitioner Shahjahan Kiani, was stood forward for consideration against the post of Budget Officer B-17 instead of sending Panel of at least three eligible officers as visualized vide Govt. Notification Bearing No, Admin/A-27(46)-83 dated 20.06.1983. It further reflects from record that A.C.Rs, of petitioner containing No, 2 adverse remarks were also kept in dark which were got expunged after recommendations of Selection Board dated 11.12.2006, on 12.01.2007. The working paper, therefore, was framed against the provisions of Azad Jammu & Kashmir Finance Department Rules, 1985, and Govt. Notification dated 20.06.1983. The petitioners who were officer and employee of the concerned Department manoeuvred to obtain the recommendations of Selection Board through ill-gotten gains, which cannot be protected through writ jurisdiction. An identical point was arisen before the apex Court in case titled Custodian of Evacuee Property & 7 others v. Tariq Mehmood Butt (2002 SCR 38). At page 43 of the report it was held as under: "There is yet another important aspect of the matter. It may be observed that an aggrieved person is not permitted to invoke the writ jurisdiction for the, perpetuation of injustice or to save his ill- gotten gains. Thus the respondents after having got the land at his own instance in lieu of the land allotted to him, cannot turn round and say that he was still entitled to receive the compensation of the evacuee land which was allotted to him."
The identical view was expressed by Lahore High Court, in case titled Messrs Air Home International v. Government of Punjab through Secretary Finance Civil Secretariat, Lahore & another (2002 CLC 780), wherein at page 783 of the report, it was held as follows: "As in the present cases it is the petitioners who received the stamp duty in cash on the Air Tickets issued by them. I, therefore, do not find any case being made out' for exercise of constitutional jurisdiction particularly when it is glaring on the face of record that the very purpose of these writ petitions is retention of ill-gotten gains and this Court would never exercise writ jurisdiction in such like matters. All these writ petitions are dismissed with costs."
The same view was expressed by the Karachi High Court in case titled Muhammad Hussain Shaikh and others v. University of Sindh and others. (2002 PLC (C.S) 696) wherein, at page 705 of the report it was observed as under: "It is well settled that the jurisdiction conferred on this Court under Article 199 of the Constitution is meant to be exercised in the aid of justice, as was held by the Hon'ble Supreme Court in the above, cited case of Abdul Hague Indhar. Their lordships of the Hon'ble Supreme Court while reiterating the principles laid down in PLD 1973 SC 230 (Nawab Syed Raunaq Ali and others), 1995 SCMR 305 (Market Committee, Multan through its Administrator and another v. Muhammad Sabir) and PLD 1997 SC 304 (Khilai Khan v. Haji Nazir and 4 others) were pleased to observe in the aforementioned case that the constitutional jurisdiction cannot be exercised to perpetuate the ill-gotten gains."
9. From the perusal of summary submitted to Minister Finance, it reveals that after recommendations of Selection Board dated 11.12.2006, it was apprised at the back of the summary by office on 10.01.2007, that promotion order to the extent of petitioner Shahjahan Kiani, would be issued after promotion of one Nazir Kiani, Budget Officer B-17, while adverse remarks pertained to Petitioner No, 2 Arif Usmani be conveyed to him. It appears that when Finance Secretary came to know about the above mentioned office note dated 10.01.2007, he summoned the meeting of Selection Board and ultimately recommendations issued in favour of petitioners on 11.12.2006 were recalled by giving detailed reasons in the meeting dated 06.06.2007. The proceedings with regard to withdrawal of recommendations were duly signed by Secretary Finance as Chiirman and all the other three members in the same meeting dated 06.06.2007. The petitioners admitted that the post of Muhammad Nazir Kiani, Budget Officer B-17, was not vacant at the time of recommendations of Selection Board dated 11.12.2006, which became available later on due to promotion of Muhammad Nazir Kiani vide notification dated 29.03.2007. The learned counsel for petitioners admitted at Bar that at the eve of recommendations of Selection Board supra, the post of Budget Officer B-17 was not vacant. However, he submitted that selection process could be completed by the selection authority even if any vacancy is likely to available in near future.
However, I am of the considered view that at the time of selection process, the post must be vacant for the purpose of promotion. The similar point was arisen before the Hon'ble Supreme Court in case titled Muhammad Maroof v. Sardar Muhammad Tariq Khan and 3 others (2009 SCR 63), At pages 65 and 66 of the report it was held as under:-- "I have, heard the learned counsel for the parties, perused the relevant record and have given my earnest thought to the respective arguments advanced by the learned counsel for the parties. The perusal of record shows that the written statement filed before the Service Tribunal clearly contains "that there was no post of District Food Controller in District Bhimber. The petitioner was not promoted as District Food Controller rather a stopgap arrangement was made. The petitioner was assigned the charge of District Food Controller and the Notification dated 31.05.2007 contains that he will draw his salary against his own post. Of Storage Officer". Now the question emerges that when there was no post of District Food Controller in District Bhimber, then how the petitioner could be promoted or a stopgap arrangement could be made? The stopgap arrangement can only be made if there is some post of District Food Collector and for the time being the District Food Collector is not working on the post due to some other reasons. When there was no post of District Food Controller, then no question arises regarding stopgap arrangement or promotion of any person. It is well settled principle of law that no appointment or transfer can be made unless there is a post."
"Underlining is mine for emphasizing"
' An identical point came under consideration before the apex Court in case titled Azad Govt. v. Haji Mir Muhammad Naseer & 10 others (2000 SCR 109), wherein at page 117 of the report it was held as follows:-- "From the above it is clear that when applications were invited through advertisements mentioned above in May 1997 and when the interviews were held the posts under the Education Package had not yet been created. In the advertisements fifteen days time was fixed for filing of applications which expired in the beginning of June 1997. The question therefore is whether the requirement of law about advertising the posts was fulfilled or not? Rule 17 of Azad Jammu & Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977 lays down that initial appointments in posts carrying grades 1 to 15 shall be made on the basis of examination or test by inviting applications through advertisements in newspapers. Rule 17 is worded as follows:-- "17. Initial appointment to all posts in grades 1 and above except those filled under Rule 16, shall be made on the basis of examination or test to be held by the appropriate Committee or the Board, as the case may be, after advertisement of the vacancies in newspapers, or in the manner to be determined by the Government."
' Sub-rule (1) of Rule 23 of the said Rules is also relevant:-- "(1) When a post is required to be filled, the appointing authority shall forward a requisition to the selection authority immediately after decision is taken to fill the post."
' Sub-rule reproduced above opens with the words "when a post is required to be filled" which clearly means that a post should exist before it is advertised. Rule 17 by necessary implication also is to the same effect. These provisions show that a post or vacancy has to exist before it is advertised. These provisions do not visualize that applications may be invited without there being a vacancy or post. Therefore, in our view it was illegal to fill in the posts created in December on the basis of the advertisement, applications and interviews already conducted before the creation of new vacancies.
10. The petitioner filed the instant writ petition for issuance of writ of mandamus to act upon the recommendations of Selection Board dated 11.12.2006. However, the above mentioned recommendations were withdrawn with effect from issuance date vide impugned office order dated 08.06.2007. The petitioners challenged the said order before this Court by filing amended writ petition. The lis with regard to issuance of writ of mandamus to enforce the recommendations of Selection Board dated 11.12.2006 was no more available, therefore, writ petition filed by the petitioners after issuance of the impugned order dated 08.06.2007, became infructuous. The petitioners are admittedly civil servants and due to issuance of impugned order supra their terms and conditions were effected. As per Section 4 of the Azad Jammu & Kashmir Service Tribunals Act, 1975, if any civil servant is aggrieved from any final order passed' against him, whether appellate or original, he has right to file an appeal before. Service Tribunal. According to sub-section (2) of Section 47 of the Interim Constitution Act, 1974, writ petition is not maintainable in respect of matter to which the jurisdiction of Service Tribunal is extended. The Hon'ble Supreme Court in case titled Raja Naveed Hussain Khan & others v. Qazi Khalil-ur-Rehman and others (1994 SCR 267), observed as under:-- "Since we have found that the order of the High Court is without jurisdiction we have decided not to comment on the various contentions raised on behalf of the contesting parties.
' However, we may take note of an argument advanced by the learned 'counsel for the respondent that the Service Tribunal has the jurisdiction to hear an appeal only against a final order and that since there was no final order in the case the High Court possessed jurisdiction. This argument has no force because the matters relating to the terms and conditions of service of civil servants are outside the jurisdiction of the High Court and that Court cannot pass any order to give any direction to enforce any of them."
' The same view was expressed by the apex Court of Pakistan in case titled Khalid Mahmood Wattoo v. Government of Punjab & others [1998 SCMR 2280], wherein it was observed as follows: "The consistent view of this Court has been that a writ petition or Constitutional petition under Article 199 of the Constitution is not maintainable by a Civil servant in relation to any matter connected with the terms and conditions of service in respect whereof the Service Tribunal has jurisdiction, in view of the provisions contained in Article 212 of the Constitution."
' The writ petition, therefore, is hit by Section 47(2) of the Azad Jammu & Kashmir Interim Constitution Act, 1974, read with Section 4 of the Azad Jammu & Kashmir Service Tribunals Act, 1975.
11. The contention of the learned counsel for petitioners that the instant writ petition is for issuance of direction, pertaining to recommendations of Selection Board dated 11.12.2006, is not tenable. As observed earlier, after withdrawal of recommendations of Selection Board vide impugned order dated 08.06.2007, there remained nothing for issuance of direction, hence, ratio-decidendi laid down by the apex. Court in case of Azad Govt. & others v. Farhat Shaheen (2007 SCR 62), referred to by the learned counsel for petitioners is not applicable in the given case. In the case of Farhat Shaheen, there was no any adverse order except recommendations of Selection Board which were not acted upon by the respondents in that case, hence, writ of mandamus was issued. However, in the instant case, recommendations were withdrawn, by the Selection Board itself, hence, writ petition is accordingly not maintainable.
12. The contention of the learned counsel for petitioners that under sub-rule (2) of Rule 20 of Azad Jammu & Kashmir Rules of Business, 1985, the recommendations issued in favour of petitioners were not turned down by the Department, therefore, sub-rule (2) supra was not attracted is also misconceived. From the perusal of record it reveals that Finance Secretary, who happened the Chairman of Selection Board No, III, did not accept the recommendations while finding discrepancies, hence, summoned the meeting of Selection Board, for reconsideration of recommendations issued in favour of petitioners and thereafter, the same were withdrawn as obtained unlawfully, hence, Department did not propose to accept the recommendations of Selection Board, therefore, matter was returned to the Board for reconsideration strictly in accordance with sub-rule (2) of Rule 20 of the Rules of Business, 1985, hence, the contention is turned down.
13. The contention of the learned counsel for contesting respondent that under sub-rule (3) of Rule 13 of Rules of Business, 1985, the matter pertaining to promotion of petitioners, being officer and employee of the Finance Department could not be sanctioned without prior concurrence of Services and General Administration Department is also correct. In this regard, the above rule is reproduced as follows:-- "No order in respect of emoluments, promotion or conditions of service of any officer employed in the Finance Department shall be made and no expenditure proposal relation to that Department shall be sanctioned without prior concurrence of the Services and General Administration Department. The Chief Secretary shall perform in respect of such matter, the functions of the Secretary, Finance Department."
'A bare reading of sub-rule (3) supra makes it clear that matter was relating to promotion of petitioners as officer and employee of Finance Department, therefore, concurrence of Services and General Administration Department as per above rule was necessary. Even Selection Board could be chaired by Chief Secretary, as Secretary Finance Department, hence, the recommendations issued in favour of petitioners were unlawful accordingly.
14. There is wisdom behind the rule as Finance Department is Custodian of funding of the State, hence, to maintain its impartiality in the matters relating to emoluments, prior concurrence of Services and General Administration Department, has been wisely postulated by the law makers.
As in promotion of its employees and officers finance is involved, therefore, in such like matters the Selection Board which is liable to be headed by Secretary Finance shall be chaired by the Chief Secretary.
15. The contention of the learned counsel for contesting respondent that qualification prescribed for the post of Budget Officer B-17 was Intermediate, whereas Petitioner No, 1 was Matriculate, therefore, he could not be considered for promotion is due to misreading of substituted rules of Azad Jammu & Kashmir Finance Department Rules, 1985, amended vide notification dated 16.06.1996, therefore, the objection is overruled.
16. Before parting it is liable to be observed that if the posts Of Budget Officer B-17 and Budget.
Superintendent B-16 are vacant, then official respondents shall stand forward the panel for promotion against the said posts in accordance with law. As per Government notification bearing No, Admin/A-27 (46)-83 dated 20.06.1983, besides seniority list plus copy of statutory rules, panel must be consisting of at least three eligible officers/employees, as the case may be. The petitioners if otherwise eligible be considered for promotion in accordance with Azad Jammu and Kashmir Finance Department Rules, 1985.
17. The crux of above discussion is that finding no substance in the instant writ petition, the same is hereby dismissed. The costs shall follow the eventuality.