MOHAMMAD SHERAZ KIANI, J.--- The above captioned writ petition has been filed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, whereby the petitioner has implored the following relief:- "For the reasons and grounds afore-listed, the petitioner humbly beseeches the gracious indulgence of this Hon'ble Court to wipe out and extinguish the impugned Notification dated 26.12.2016 as has been passed in violation of the Deputation Policy, AJK Board Act, 1986 and against the celebrated norms of justice. Any other relief ponders appropriate by this Hon'ble Court may also be extended."
2. Precise facts, forming the background of the instant writ petition, as per claim of the petitioner are that the petitioner was appointed as Chairman, AJK Intermediate and Secondary Education, Mirpur on 12.08.2014, on the basis of deputation for a period of three years. It has been stated that in furtherance of the above Notification, another Notification was issued on 11.12.2014, whereby terms and conditions of the petitioner as per the Deputation Policy were determined. It has been alleged that vide Notification dated 26.12.2016, the petitioner has been repatriated to his parent department and attached with the Directorate, Colleges. It has been claimed that the impugned order dated 26.12.2016 is coram non judice, void ab initio and against the celebrated norms of justice, relevant law and was issued with mala fide intention. The impugned Notification has been issued without affording an opportunity of hearing to the petitioner as well as without consultation with the parent department, hence, is violative of Clause 4 of the Deputation Policy.
3. The respondents were directed to file comments and the needful has been done, accordingly. In the comments, while negating the stance of the petitioner, it has been stated that the petitioner has got no locus standi. The matter in hand pertains to the terms and conditions of services of the petitioner, for which, the proper forum is the Service Tribunal. The petitioner has not pointed any violation of law and has also not come in the Court with clean hands, therefore, does not deserve any relief by this Court. It has also been stated that the petitioner, while submitting the instant writ petition, has not fulfilled the requirements of rule 32(2) of the Azad Jammu and Kashmir High Court Procedure Rules, 1984, hence, the petition is not maintainable and merits dismissal, also on the ground of availability of the alternate remedy.
4. Mr. Khalid Rashid Chaudhry, Advocate the learned counsel for the petitioner, while reiterating the facts and grounds of the petition, contended that the petitioner was appointed as Chairman, B1SE Mirpur, for a period of 3 years vide Notification dated 12.08.2014, but on the basis of personal grudges as well as like and dislike have issued Notification dated 26.12.2016, whereby, the petitioner has been attached with the Director Education. The learned counsel maintained that under clause 4 of the Deputation Policy, it was necessary for the authority to consult the parent department of the petitioner, before issuance of the impugned Notification but the needful has not been done. The learned counsel, on the point of terms and conditions maintained that the petitioner has been appointed on deputation and a deputationist does not fall within the definition of a civil servant, hence, he cannot invoke the Jurisdiction of Service Tribunal and remedy, lies in the High Court only.
In support of his submissions, the learned counsel referred 2014 SCR 466 and craved for admission of the petition for regular hearing.
5. Refuting the arguments of the learned counsel for the petitioner, the learned AAG contended that the petitioner was appointed as Chairman, BISE through the Notification dated 12.08.2014 and thereafter a disciplinary inquiry was held against the petitioner on the ground of misuse of powers and other allegations. The learned AAG maintained that the petitioner has been de-associated from his assignment for proper investigation of the allegations and impartial inquiry. It was further argued by the AAG that the matter in hand pertains to the terms and Conditions of a civil servant and the impugned Notification is a final order, for which, the appeal is provided under the relevant law, therefore, the petitioner cannot invoke the extra ordinary jurisdiction of this Court in presence of an efficacious and adequate alternate remedy.
The AAG also contended that requirement of Rule 32(2) of the Azad Jammu and Kashmir High Court Procedure Rules, 1984 has not been fulfilled by the petitioner, while filing the instant writ petition and under section 47(2) of the Azad Jammu and Kashmir Interim Constitution Act, 1974 the jurisdiction of this Court is barred in respect of the matters pertaining to the terms and conditions of a civil servant. Finally, the learned AAG prayed for dismissal of the writ petition and referred; 2016 SCR 1045.
6. I have heard the learned counsel for the parties, scanned the record and considered the controversy with due care.
7. As far the first objection raised by the respondents regarding the maintainability of the instant petition is concerned, a glance perusal of the file reveals that all the documents attached with the file are just Photostat copies, without any attestation, hence, this objection of the respondents has a substance, however, as another law point regarding the determination of terms and conditions is also involved in the case, therefore, this Court would like to resolve this point, once for all.
8. The other point, raised by the respondents that the matter relates to the terms and conditions of a civil servant has also been considered by this Court. In this regard the learned counsel for the petitioner has referred case-law, reported as 2015 SCR 393. Although in the referred case, the Hon'ble apex Court has admitted the petition for regular hearing and remanded the case for decision, however, the facts and circumstances of the referred case are distinguishable from that of the case in hand, hence, in my view, not helpful to the case of the petitioner.
9. It has rightly been argued by the learned counsel for the petitioner that deputations does not fall within the definition of a civil servant but the same is regarding a deputationist borrowed from outside the Azad Jammu and Kashmir jurisdiction and an employee, Alio is already working within the jurisdiction of the State of Jammu and Kashmir cannot be termed as an employee borrowed from abroad, hence. I would like to declare that any civil servant, serving any department of Azad Jammu and Kashmir shall be termed as a civil servant, even serving on deputation and any dispute regarding terms and conditions of his service shall be determined by the Service Tribunal of Azad Jammu and Kashmir. For proper appreciation of the controversy, Section 2(B) of the Service Tribunals Act is reproduced, which reads as follows:-- "2. ......................................
(a).......................................
(b)"Civil Servant" means a person who is appointed to any service or holds a civil post in the service of Azad Jammu and Kashmir,employed in connection with the affairs of the State, but does not include: -
(i) a person who is on deputation to the service of Azad Jammu and Kashmir in connection with affairs of the Government, from the Council, or the Federation or any Province of Pakistan or authority."
10. The above reproduced provision of law, clarifies the position that only those employees cannot be termed as civil servants, who have been appointed on deputation from the Council, Federation or from any Province of Pakistan or any authority, whereas, the petitioner is a permanent employee of the Education Department of Azad Jammu and Kashmir therefore, he cannot be excluded from the definition of a civil servant of the Azad Jammu and Kashmir.
11. Even otherwise, the jurisdiction of this Court is barred under Section 47(2) of the Interim Constitution Act, 1974. Relevant provision is usefully reproduced, which is as under: "(2) Notwithstanding anything hereinbefore contained, where any Administrative Court or Tribunal is established under subsection (1), no other court shall grant an injunction, make any order or entertain any proceedings in respect of any matter to which the jurisdiction of such Administrative court or Tribunal extends and all proceedings in respect of any such matter which may be pending before such other court immediately before the establishment of the Administrative court or Tribunal shall abate on such establishment."
12.In Ejaz Ahmed Awan's case, [1999 PLC (C.S.) 1439], the Hon'ble apex Court of Azad Jammu and Kashmir, while resolving the identical controversy, has laid down some broad principles in the following words:-- "8. However, following broad principles are laid down for guidance:--
(1) If an ad verse order has been passed by a departmental authority, it can only be challenged by filing appeal before the Service Tribunal to the total exclusion of the jurisdiction of the High Court.
(2) If a favorable order has been passed by a departmental authority but it is not being implemented without just cause and the matter suffers from procrastination a writ, subject to just exceptions, may issue to enforce its implementation provided always that the order is valid and legally enforceable.
(3) Principle laid down in No,2 above would not apply if the previous order is being reconsidered or is being recalled in which case reasonable time should be allowed for the reconsideration and final disposal of the matter. In such cases High Court cannot issue a direction to the relevant departmental authorities not to withdraw or amend the order sought to be implemented through the writ petition.
(4) If a final order has not been passed the concerned civil servant should wait till passing of such order and then challenge it before the Service Tribunal instead of approaching the High Court for a declaration or injunction regarding a matter which falls within the ambit of terms and conditions of his service e.g. seniority promotion, posting etc. (5)If an application, appeal or review is pending for disposal with the departmental authorities, the High Court is competent to issue a direction for its disposal within a reasonable time by fixing a time limit. However, this power will be exercisable only if the High Court is satisfied that the departmental authorities are procrastinating or contumaciously refuse to pass a final order."
13. Similarly, in case titled Muhammad Tariq Amin and 3 others v. Muhammad Hussain and 3 others, [1999 PLC (C.S) 9411, the Hon'ble apex Court has pleased to observe as under:-- "without adverting to the question of determining the seniority of the parties, the law stands settled that the matter which involves the terms and conditions of a civil servant, the jurisdiction of the High Court stands totally ousted in view of bar contained in subsection (2) of Section 47 of the Interim Constitution Act. The findings thus recorded by the High Court being in contravention of the dictum laid down by this Court in various cases relied by the learned counsel for the appellants is bad in law which is hereby set aside. In our view there is a marked distinction between those cases in which the High Court merely issues a direction to the Government functionaries or the lower Tribunals to decide a case within a certain time and those cases in which a direction is given on the basis of which a certain civil servant becomes senior to those who challenge his seniority."
14. So far the argument of the learned counsel for the petitioner that the petitioner has not been afforded an opportunity of being heard, before issuance of the impugned Notification is concerned, in this regard it may he observed that there is an inquiry under process against the petitioner in which serious allegations are to be determined. Even otherwise, when this Court has come to the conclusion that the petitioner is a civil servant and the impugned order is also a final order, passed by the competent authority and the matter relates to his terms and conditions of service and in view of the bar contained in Section 47(2) of the Interim Constitution Act, 1974, the jurisdiction of this Court is barred, then, the legality or validity of the impugned order can be looked into by the competent forum, only.
15. In view of the above, this Court is inclined to hold that the petitioner has an alternate remedy of filing an appeal before the AJ&K Service Tribunal, against a final order passed by the Department.
16. What emerges from the above discussion is that the instant writ petition fails to make out any case for admission, specially in presence of an alternate remedy, therefore, stands dismissed in limine.