Ghulam Mustafa Mughal, J.--The titled appeal with our leave has been directed against the Judgment dated 21.11.2017, passed by the Azad Jammu & Kashmir High Court in W rit Petition No, 166 of 2013.
2. The facts necessary for disposal of the captioned appeal as stated are that the respondent, herein, is permanent employee of the Forest Department. While performing his duty as Range Officer, Integrated Land Management Range (ILMR), Muzaf farahad, he conducted an inquiry in respect of alleg ation of misappropriation and embezzlement in food items provided by World Food Program for Integrated. Land Management Program and detailed inquiry report was submitted, upon which proforma Respondent No, 1, herein, and another were found guilty . It was averred that the appellants, herein, instead of proceeding against the accused firstly tried to pressurize the respondent, herein, to withdraw his report or amend the findings and thereafter deputed Conservator Forests to conduct a fresh inquiry . In the subsequent inquiry report, the committee Recommended major penalty of removal from service of Bashir Ahmed, Forester Ghulam Rasool, Forest Guard and the respondent, herein, but the competent authority did not agree with the recommendations of the inquiry officer to the extent of respondent, herein, and acquitted him from the charge vide notification dated 18.11.201 1. A review was filed by Bashir Ahmed.
Forester (r). Forest Department, against the notification dated 18.11.201 1, whereupon, the dismissal of the petitioners, therein, was set aside and the Secretary Forests was directed for 'coking into the matter and thereafter obtain the approval of the competent authority (Chief Executive). Upon the recommendations of the Secretary Forests, the competent authority ordered to initiate inquiry proceedings denovo for the alleged misconduct under the AJ&K Removal from Service Special Power Act. 2001, and constituted an inquiry committee for the purpose vide order dated 21.12.2012. "The respon dent, herein, filed a writ petition before the Azad Jammu & Kashmir High Court on 21.11.2017, wherein, the notific ation dated 21.12.2012 was challenged and a prohibition was sought to restrain the respondents to proceed against him on the matter which has already been finalized vide notification dated 18.11.201 1. The learned High Court, after necessary proceedings, through the impugned judgment dated 21.11.2017, has accepted the writ petition and set aside the notification dated 21.12.2012.
3. Mr. Muhammad Hanif Khan Minhas, the learned Advocate appearing for the appellants vehemently argued that the impugned judgment passed by the learned High Court is without jurisdiction and is illegal because the order of denovo inquiry to the extent of respondent, herein, was passed by the competent author ity and he participated in the inquiry . When the inquiry report was submitted, he challenged the same through the writ petition before the High Court on the apprehension that the recommendations of the inquiry committee might be against him. The learned Advocate further argued that the authority is competent to initiate denovo inquiry when some facts are brought into its notice that the earlier exoneration by the authority was not justified: He added that earlier exoneration does not create any bar or place any restriction on the powers of the authority as an authority competent to pass an order can amend or rescind the same. The learned Advocat e further argued it was enjoined upon the petitioners before the High Court to wait for the final order and thereafter approach the appropriate forum.
He lastly submitted that the impugned judgment of the learned High Court is volative of the law and the Constitution.
4. Conversely , Ch. Shabbir Ahmed, the learned Advocate appearing for the respo ndents argued with vehemence that once inquiry proceedings against the respondents were completed by the competent authority and he stood acquitted then fresh/denovo inquiry on the same charge could not be ordered on the principle of double jeopardy , hence the notification dated 21.12.2012 is without jurisdictional competence, hence, has rightly been quashed by the learned High Court. The learned Advocate further argued that there was no occasion for the petitioner/respondent herein, to approach the learned Service Tribunal because final order was yet to be passed by the competent authority . The learned Advocate further argued the notification dated 21.12.2012 was mala fide, hence, there was no embargo on the powers of the learned High Court to issue the writ of prohibition.
5. We have heard the learned counsel for the parties and have gone through the record of the case with our utmost care. A perusal of the record reveals that the respondent, herein, along with two others were proceeded for misconduct under the provisions of AJ&K Removal from Service (Special Power) Act, 2001, and an inquiry officer was appointed for looking into the allegations and report. It appears that the committee recommended major penalty of removal from service for Bashir Ahmed, Forester , Ghulam Rasool, Forest Guard and the respondent, herein, the accused civil servants, but the competent authority did not agree with the recommendations of the inquiry officer to the extent of respondent, herein, and acquitted him from the charge vide notification dated 18.11.201 1. Thereafter , a review/ representation was filed by Bashir Ahmed, Forester (r), against the notification dated 18.11.201 1, whereupon, the dismissal of the petitioners, therein, was set aside and the Secretary Forests was directed for looking into the matter and thereafter obtain the approval of the competent authority (Chief Executive). Later on, on the recommendations of the Secretary Forests. AKLASC and Wild Life, the competent authority initiated denovo inquiry for the alleged misconduct under the AJ&K Removal from Service (Special Power)
Act, 2001, against the respondent, herein, & others and constituted an inquiry committee for the purpose. The committee recommended for award of punishment in light of the inquiry already conducted by the Conservator Forests. It is pertinent to mention here that the respondent, herein, in. compliance of the notification dated 21.12 2012, participated in the subsequent inquiry and when the recommendations were to be submitted to the competent authority , he filed writ petition before the Azad Jammu & Kashmir High Court on. 04.02.2013 challenging the order for initiation of denovo inquiry , whereupon, the learned High Court set aside the notification dated 21.12.2012. It may be stated here that in the circumstances of this ease and the bar contained under Article 47 of the Interim Constitutionally ion, 1974, there was no occasion for the learned High Court to issue writ while cancelling the notification dated 21.12.2012 because the matter clearly pertains to the terms and conditions of service of the petitioner before the High Court. In such state of affairs, the proper course for the High Court was to leave the matter for decision of the competent authority and the petitioner/respondent, herein, in case of any adverse order has an adequate efficacious remedy in the shape of representation and thereafter appeal before the Service Tribunal. In the case reported as Ejaz Ahmed Awan and 5 others vs. Sued Manzoor Ali Shah and another 11999 SCR 2041, the scope of the writ jurisdiction of the High Court with reference to the service matter was noticed and after considering the various case law and precedents of the superior Courts of Pakistan and abroad, following guidelines were formulated for assumption of jurisdiction by the High Court under Article 44 of the Interim Constitution, 1974, which are reproduced as under .
"1) If an adverse 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 tie 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 ten 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 department al authorities, the High Court is competent to issue a direction for its disposal within a reason, able 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 ."
The principles enumerated at serial No, 3 and 4 are fully attracted in the present case which have been violated by the learned High Court. The Apex Court of Pakistan has also approved the similar view in the following cases:-- i. Malik Tahir Mehmood D.S.P . vs. The Government of the Punjab through Chief Secretary , Lahore and 4 others [2001 PLC (C.S) 144 ], ii. Muhammad Murtaza and another vs. The Deputy Commissioner/Deputy Director (Ex-officio), Anti-Corruption Establishment, Bahawalpur and others [1997 PLC (C.S) 214 ], and iii. Zulfiqar Ali vs. Superintendent, of Police and others [2003 SCMR 1562 ], We have also noticed that the impugned judgment of the learned High Court is contradictory as on one hand it has been observed that after , issuance of the notification, the authority was not competent to reopened matter and on the other hand it has been opined that the Ehtesab Bureau or the Anti-Corruption Department may proceed against the respondent, herein, We are of the view that in presence of the notification dated 21.12.2012, is difficult to proceed against the accused civil servants. Besides above, the notification sought to be quashed was issued after proper appreciation of law and the High Court has no jurisdiction to give findings on the inquiry report regarding which the authority has prerogative to take a proper decision. In this perspective of the matter , the learned High Court has shifted the proceedings pending before the competent authority before it while preempting the jurisdiction of the competent authority which, is illegal.
The upshot of the above discussion is that this appeal is accepted and the impugned judgment of the High Court is hereby recalled. Resultantly , the writ petition filed by the respondent, herein, stands dismissed with no order as to costs.