M. TABASSUM AFTAB ALVI, C.J.---The supra titled writ petition has been addressed under Article 44 of the Azad Jammu and Kashmir Interim Constitution, 1974, whereby, vires of the impugned order dated 13-12-2017, has been challenged for having been passed as without lawful authority.
2. Precise facts forming background of the instant writ petition are that Education Department advertised two posts of Junior Teachers from constituency No,2, Muzaffarabad. The petitioner being qualified applied for the same and after obtaining test and interview was placed at serial No,2 of the merit list, hence, was appointed on recommendation of respective selection committee, vide order dated 10.09.2009. However, later on the aforesaid appointment order of petitioner was recalled on the ground of overage, vide order dated 26.09.2009. Being aggrieved from the aforesaid order, petitioner filed a departmental appeal, before Divisional Director Schools Muzaffarabad. The aforesaid appeal could Not be decided, hence, petitioner constrained to file Writ Petition No,132/2015 titled Zahoor Hussain Shah Hashmi v. Secretary Education Schools and 3 others, which was accepted and Secretary Education Schools was directed to decide his appeal through judgment dated 15.09.2017. The aforesaid appeal of petitioner was dismissed by Secretary Education Schools through the impugned order dated 13.12.2017, hence, the instant constitution petition.
3. Chaudhry Muhammad Mushtaq, the learned counsel for petitioner strenuously argued that his client was appointed after due process of law, on the basis of merit and recommendation of respective selection committee, vide order dated 10.09.2009, however, on flimsy ground of overage his appeal was dismissed vide the impugned order dated 13.12.2017, hence, craved for admission of writ petition.
4. I have perused the contents of writ petition and examined the appended documents made available with utmost care.
5. A contemplate perusal of file reveals that petitioner was appointed as Junior General Line Teacher, as per recommendation of respective selection committee, vide order dated 10.09.2009.
The aforesaid order was recalled by Education Department on the ground that at the time of induction petitioner was overage, vide order dated 26.09.2009. The petitioner while considering himself aggrieved from the aforesaid order, filed a departmental appeal before Divisional Director Schools Muzaffarabad, however, the same was transmitted to Secretary Education Schools, as appellate authority by this Court through Writ Petition No,132/2015 titled Zahoor Hussain Shah Hashmi v. Secretary Education Schools and 3 others, decided on 15.09.2017. It appears that on the basis of the aforesaid judgment of this Court, Secretary Education Schools rejected departmental appeal of petitioner through the impugned order dated 13.12.2017. Admittedly, petitioner is a Civil Servant, who considers himself aggrieved from the impugned order dated 13.12.2017. The jurisdiction of this Court is, therefore, barred under Article 47(2) of the Azad Jammu and Kashmir Interim Constitution, 1974, which postulates that where any Administrative Court or Tribunal is established, no other Court shall grant any injunction, make any order or entertain any proceeding, in respect of any matter, to which the jurisdiction of such administrative Court or Tribunal extends. The Govt. had admittedly established Service Tribunal for terms and conditions of civil servants. As matter pertains to terms and conditions of petitioner, hence, writ petition is hit by Article 44(2) of the Interim Constitution, 1974. An identical proposition came under consideration before the Apex Court in case titled "Ghiasul Haq and others v. Azad Government of the State of Jammu and Kashmir and others [PLD 1980 SC (AJ&K) 51 wherein, at page 36 of the report, it was observed as under:- "24. The respondents had an adequate alternate remedy by way of appeal before the Service Tribunal. Without their having first resorted to the same, the writ petitions,were not intertainable. It was wrong for the High Court to entertain petition for writ when the law provided a remedy by way of appeal to the Service Tribunal, fully competent to grant the requisite relief. The indulgence shown by the High Court in entertaining the writ petitions was not only taken to defeat the legislative intent, but was act to create distrust in the Service Tribunal. If the right, which a person seeking a writ, claims to base in him is the creation of a statute....................."
A similar view was expressed by the Apex Court in case titled Qazi Muhammad Suleman and 5 others v. Azad Jammu and Kashmir Government and 2 others [2002 PLC (C. S.) 7691 at page 773 of the report, it was held as under:- "This Court has repeatedly expressed this view that any matter which falls within, the ambit of terms and conditions of Civil Servants cannot be resolved by any Court including High Court in exercise of its writ jurisdiction except Service Tribunal........"
An identical proposition came under consideration before the Apex Court of Pakistan in case titled "lqan Ahmed Khurram v. Government of Pakistan and others" [PLD 1980 SC 1531. At page 159 of the report, it was opined as follows:- As to the ground concerning the non-maintainability of the petition, the High Court has held, and it is also the case of the petitioner, that the effect of the Rules is that it has altered the terms and conditions of service. This being so, the bar of Article 212 of the Constitution would be applicable with full force as in that exercise the question of wires of the Rules vis-a-vis section 25 of the Act would necessarily be considered. In this behalf the High Court has relied on the statement of law enunciated in Muhammad Hashim Khan and others v. Province of Balochistan and others (3) and Fazal Elahi Ejaz and others v. Government, of the Punjab and others with which I agree.
This is a common grievance in the other two petitions and they would also be hit by the same bar.
We may here point out that a distinction has to be drawn between a case where the eligibility of an officer as to his fitness to hold a particular post or to be promoted to a higher grade under the Rules applicable to him and the Rules which by themselves alter the method of recruitment and promotion. In the former case, proviso (b) to section 4 of the Service Tribunals Act, 1973, will be applicable and no appeal will lie to the Service Tribunal. However, this will not be so in the latter case as the Rules per force alter the method of recruitment and promotion in supersession of the existing Rules which provide a cause of action for the grievance qua the alteration of terms and conditions of service and hence, -an appeal will lie to the Service Tribunal." A similar view was also expressed by the Lahore High Court, in Case titled "Muhammad Ilyas v.
Secretary to Government, Punjab, S&GAD Department, Lahore and 3 others" [1998 PLC (C.S.) 361. At page 40 of the report, it was held as under:-- "9. Admittedly, the petitioners are the civil servants, serving in the Punjab, Relief Department. The impugned notification, according to the petitioners, learned counsel, has adversely affected and diminished the chances of their promotion to the post, of the Superintendent. Thus, the amendment introduced in the Rules of Service through the impugned notification relates to the terms and conditions of service of the petitioners, therefore, an appeal is competent before the Punjab Service Tribunal under section 4 of the Punjab Service Tribunal Act, 1974, wherein the impugned Notification can be treated as an order of the departmental authority and the vires of the amending Rule, can also be challenged as held by the Hon'ble Supreme Court of Pakistan in the cases of Icon Ahmad Khurrum and I.A. Sharwani...."
6. The petitioner, therefore, could prefer an appeal against the impugned order dated 13.12.2017, before Service Tribunal, as per section 4 read with section 5 of the Azad Jammu and Kashmir Service Tribunals Act, 1975, hence, due to availability of alternate, adequate and efficacious remedy, the instant writ petition is bad in law.
7. The crux of above discussion is that admission of writ petition will be a futile exercise to create false hopes, hence, the same is hereby dismissed in limine.