Ghulam Mustafa Mughal, J-- This appeal by leave of the Court has been directed against the judgment passed by the learned High Court on 16.2.2017, whereby, writ petition No. 2384 of 2016 filed on behalf of the appellants, herein, has been dismissed in limine.
2. The precise facts forming the background of the captioned appeal are that the appellants, herein, as per their claim, are permanent employees of the Azad Jammu and Kashmir Government and at present they are serving as Assistant Refugee Welfare Officer/Refugee Welfare Assistant, B- 14 in the office of the Commissioner Rehabilitation, Muzaffarabad. Appellants No. 1 to 3, herein, were appointed as Assistant Refugee Welfare Officers in the Rehabilitation Department, Muzaffarabad on 19.10.2002. They were confirmed as such on 18.3.2015, whereas, appellant No.4, was promoted as Assistant Refugee Welfare Officer, B-14 on 22.3.2012. It is claimed that the appellants have no further avenue for promotion, hence, they submitted an application before the Rehabilitation Commissioner for up-gradation of the posts of Assistant Refugee Welfare Officer/Refugee Welfare Assistant, B-14 in grade B-16. The Rehabilitation Commissioner addressed a letter to the Board of Revenue and recommended for up-gradation of the posts as is evident from the letter dated 21.3.2016 but the request was turned down. Thereafter, the Non-Gazetted employees Organization, Azad Jammu and Kashmir on 28.4.2016 recommended the case of the appellants and requested the competent authority for up-gradation of the five posts of Assistant Refugee Welfare Officer/Refugee Welfare Assistant, B-14 into B-16. The respondents instated of up-grading the posts without any reason and approval of the competent authority changed the nomenclature of the posts of Assistant Refugee Welfare Officer/Refugee Welfare Assistant. However, respondent No.8 recommended for up-gradation of the post of District Refugee Welfare Officer in the higher grade and a summery to that effect was moved on 10.9.2014. Meanwhile, the Government of Azad Jammu and Kashmir vide notification dated 8.6.2016 up-graded some posts carrying the same grade in the different departments vide memorandum dated 16.2.2015. Subsequently, the Government of Azad Jammu and Kashmir up-graded the posts of Superintendent, Assistant and Section Clerk serving in the Civil Secretariat. Another memorandum dated 3.4.2015 was issued by the Government, whereby, the post of Superintendent, B-16 was up-graded in grade, B-17 and Assistant, B-14 was up-graded in B-16 in some departments of Azad Jammu and Kashmir Government as is evident from the memorandum dated 3.4.2015. The appellants again submitted their application to the Commissioner Rehabilitation on 15.6.2016 for up-gradation of the posts on the same line but no action was taken. It was prayed that a direction may be issued to the respondents for up-gradation of the posts because the appellants have no further right for promotion in the department despite of the fact that they had 14 years service in their credit. It was claimed that the Secretary Finance without any reason has not approved the summary and the appellants have been discriminated, although, the nature of the job of the appellants is not different from those posts, which have been up-graded. In this background, a request was made for up-gradation of the post of District Refugee Welfare Officer B-14 in grade, B-16. A further request was also made for up-gradation of the other posts carrying grade, B-14 on the same patron upon which the other departments have upgraded the posts carrying the similar grade. Respondents No. 2 and 3 filed the written statement, wherein, it was pleaded that the appellants are serving in grade, B-14 and have a right of promotion as Welfare Officer/Refugee Welfare Assistant. The request for up-gradation has been refused earlier and the appellants have got no case for up- gradation of the posts on the ground of parity with the other departments in view of the nature of their job. The other contents of the writ petition were also refuted. After hearing the parties, a learned single Judge in the High Court through the impugned judgment dated 16.2.2017 has dismissed the writ petition in limine.
3. Barrister Humayun Nawaz Khan, the learned Advocate, appearing for the appellants, vehemently argued that the appellants sought a direction from the High Court against the respondents, hence, their writ petition cannot be dismissed in limine because under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, the writ of mandamus, writ of prohibition or writ of certiorari cannot be issued by the Service Tribunal. The learned Advocate argued that as the jurisdiction of the Service Tribunal is conditional and the appeal before the Service Tribunal is competent only against a final order but in the case in hand, no such order was passed in favour or against the appellants, therefore, the question of invoking the jurisdiction of the Service Tribunal does not arise.
The learned Advocate argued that while dismissing the writ petition in limine, the learned High Court has not appreciated the legal position in its true perspective and the conclusion reached at by the learned High Court is erroneous and illegal. The learned Advocate argued that it was a fit case for the purpose of admission. The learned Advocate in support of his submission placed reliance on the cases reported as Ali Azhar Khan Baloch and others vs. Province of Sindh and others [2015 SCM R 456] and Regional Commissioner Income Tax, Northern Region, Islamabad & another vs. Syed Munawar Ali and others [2016 SCM R 859].
4. Conversely, Mr. Raza Ali Khan, Advocate-General, appearing for the respondents, contended that it is correct that a direction cannot be issued by the Service Tribunal but fact remains that the grievance voiced through writ petition relates to the terms and conditions of the service of the appellants, hence, the writ petition was rightly dismissed on the ground of bar of jurisdiction as visualized by section 47 of the Azad Jammu and Kashmir Interim Constitution Act, 1974. He argued that even after admission of the case the fate of the controversy will remain the same, therefore, the remand of the case for fresh decision would be an exercise in futility.
5. We have heard the learned Advocates representing the parties and have perused the record with utmost care. It may be stated that the filing of the appeal before the Service Tribunal is subject to certain conditions and one of those is that an appeal to the Service Tribunal can be filed by a civil servant against the final order made by the departmental authority in respect of any of the terms and conditions of his service. In the present case, admittedly, the grievance of the appellants, herein, relates to the up-gradation of their posts and the refusal could have been made only by the authority. Moreover, as a direction for up-gradation of the posts was solicited by the appellants, herein, which was not within the jurisdictional competence of the Service Tribunal. A direction can be given only by the High Court in appropriate cases. By now, law is well settled that where no final order has been passed by the departmental authority then a civil servant cannot approach the Service Tribunal in vacuum. In the present case, the matter was sent to the Secretary Finance for concurrence and in case of refusal the concerned Secretary/department was bound to submit the proposal to the cabinet under the Rules of Business, 1985. Same like proposition has been considered in the various judgments by the apex Court of Pakistan as well as by this Court. In a case reported as S.H.M. Rizvi and 5 others vs. Maqsood Ahmed and 6 others [NLR 1982 Service 110], the controversy involved was that a tentative seniority list was published by the department of the contesting civil servants, therein and the appellants before the apex Court filed an appeal against that seniority list before the Service Tribunal. The appeal was accepted by the Service Tribunal despite of the fact that no final order was passed by the competent authority. The apex Court considered the scope of section 4 of the Service Tribunals Act, 1973 and observed in paragraphs 10 of the report as under:-- "10. The proviso (a) to sub-section (1) of section 4 of the Service Tribunals Act relied upon by the learned counsel for the respondent has not the slightest effect of detracting from the finality of the order to be appealed against. What it accomplishes is that even a final order should not be brought before the Service Tribunal if a right of appeal, review or representation to a departmental authority is provided under the law, unless that right has been availed of and the specified number of 90 days has elapsed without a substantive order. The object of it all appears to be to encourage, ensure and emphasize the redress of service grievances within the departmental hierarchy before ventilating them in the Service Tribunal. As there was no final order ever passed on the objection of the respondent nor was the seniority list finalized his appeal was not competent under section 4 of the Service Tribunals Act."
Again in para 12 of the report (supra), it was observed as under:-- "12. The Service Tribunal has taken a view of the competence of the Service appeal before it which is unsupportable on any ground. According to it the provisional seniority list became the final list on the crucial date which is taken to be the last date by which the objections to the seniority list were required to be filled, allowing thereby no time to deal with the objections or to finalize the list.
This makes the whole exercise of issuing a provisional list, inviting of the objections etc. an exercise in utter futility. Not only the provisions of the law applicable so require it is in the interest of efficient and effective functioning of the Service Tribunal itself that is should adjudicate on concrete controversies concluded by a determinative order of the departmental authority."
In the case reported as Dr. Ahmad Salman Waris, Assistant Professor, Services Hospital, Lahore vs. Dr. Naeem Akhtar & 5 others [PLD 1997 SC 382], at page 389, similar proposition was considered and it has been opined as under:-- "11. .........Thereafter, in order to make a matter exclusively cognizable by a Tribunal under the Act, and to create an ouster of jurisdiction of all other Courts and Tribunals under Article 212 of the Constitution, it must be shown that the matter is agitated by a civil servant as defined under the Act, it has arisen from a final order of a departmental authority whether original or appellate, it concerns the terms and conditions of the aggrieved civil servant and that it is not converted by the exceptions mentioned in proviso b(i) and (ii) of section 4 of the Act. If any of the conditions mentioned above are non-existent in a case then, the bar contained in Article 212 of the Constitution will not be operative."
In another the case reported as Regional Commissioner Income Tax, Northern Region, Islamabad & another vs. Syed Munawar Ali and others [2016 SCM R 859], identical proposition was resolved by the apex Court of Pakistan wherein, in paragraph 7 of the report, it has been held as under:-- "The aforesaid report definition of the expression 'upgradation' clearly manifests that it cannot be construed as promotion, but can be granted through a policy. In fact, this Court in the judgment titled as Ali Azhar Khan Baloch v. Province of Sindh (2015 SCM R 456) and an unreported judgment of this Court passed in the case of Chief Commissioner Inland Revenue and another vs. Muhammad Afzal Khan (Civil Appeal No. 992 of 2014) has held that the issue relating to upgradation of civil servants can be decided by a High Court in exercise its Constitutional Jurisdiction and bar contained under Article 212(3) of the Constitutions would not be attracted. The policy of upgradation, notified by the Government, in no way, amends the terms and conditions of service of the civil servant or the Civil Servants Act and or the Rules framed thereunder. The Service Tribunals have no jurisdiction to entertain any appeal involving the issue of upgradation, as it does not from part of the terms and conditions of service of the civil servants. The question in hand has already been answered by the aforesaid two judgments of this Court."
6. Ali Azhar Khan Baloch's case (supra) referred to and relied upon by the learned Advocate for the appellants, has distinguishable facts, hence, is not attracted to the facts of the case in hand. In Munir Qadir's case 2000 SCR 456, this Court also drew the same conclusion that an appeal to the Service Tribunal can be filed by a civil servant against a final order made by a departmental authority in respect of any of the terms and conditions of his service. In that case, it was observed that the Public Service Commission is not departmental authority, therefore, the appeal cannot be taken before the Service Tribunal against an order passed by the Public Service Commission. It follows that the jurisdiction of the Service Tribunal is conditional. One of the conditions is that the civil servant should be aggrieved from the final order whether original or appellate, made by the departmental authority in respect of the terms and conditions of his/her service, otherwise, the appeal cannot be preferred before the Service Tribunal in absence of any such order. In the present case, the appellants were seeking the direction to the concerned authority for disposal of their applications as well as up-gradation of the posts. The question was liable to be decided after seeking written statement on merits by the High Court and dismissal of the petition on account of the jurisdiction was not justified.
The upshot of the above discussion is that while accepting the appeal the judgment passed by the learned High Court is set aside. The learned High Court shall now proceed with the matter in accordance with law after admitting the writ petition. No order as to costs.