MUHAMMAD YOUNAS TAHIR, J. Through both the captioned petitions for leave to appeal, common questions of law and facts have been raised and the main subject of petitions is the judgment of the High Court dated 30.11.2021, therefore, the same were taken up together and being disposed of through the proposed consolidated judgment. Civil PLA No. 4/2022 has been addressed against the impugned judgment of the High Court, dated 30.11.2021, whereby writ petition titled Shahzada Mughal vs. Azad Government & others has been dismissed in limine whereas through Civil PLA No. 11/2022, a review petition filed by Majid Ghayas Khokhar, petitioner, against the above-referred judgment dated 30.11.2021 has been dismissed.
2. The gist of common facts involved in the petitions for leave to appeal is that Shahzada Mughal, petitioner in PLA No. 4/2022, filed a writ petition before the High Court, stating therein that he is a 1st class State-subject and serving as Senior Clerk (B-14) with the Zakat and Ushr Department, having more than 18 years' service at his credit. It was further alleged that under the Azad Jammu and Kashmir Zakat and Ushr (Department Service) Rules, 2018, the post of Administrative Officer (B-16) has to be filled in on the basis of seniority-cum-finesses from amongst Senior Auditors/Stenographers/Senior Clerks (B-14) having three years service as such, with the qualification of Bachelor degree. It was averred that a post of Administrative Officer (B-16), in Zakat and Ushr Department, is lying vacant since 2012 and he is otherwise eligible and qualified to be promoted as such, under rules but the Selection Board has recommended respondent No. 8, herein, for appointment by transfer, who was already serving as Admin Officer (B-16) in the Zakat Profit Fund, which is illegal, arbitrary and against the rights of the petitioner. The other side resisted the writ petition by filing comments, whereby they refuted the averments of the writ petition. The learned High Court, after necessary proceedings, through the judgment dated 30.11.2021, dismissed the writ petition in limine. Majid Ghayas Paracha, petitioner in Civil PLA No. 11/2022 filed a review petition before the High Court against the judgment dated 30.11.2021, alleging therein that he was not arrayed as party in the writ petition and after passing the judgment dated 30.11.2021 his rights have adversely been affected. The learned High Court, after necessary proceedings, has also dismissed the review petition through the impugned judgment dated 28.12.2021.
3. Sardar Jehandad Khan Mughal, the learned advocate, appearing on behalf of the petitioner, Shahzad Mughal, reiterated the grounds taken in the memo of petition for leave to appeal and submitted that the impugned judgment passed by the High Court is against law and the record, which is liable to be set at naught. The learned counsel further submitted that under rules the post in question falls within 70% quota reserved for promotion on the basis of seniority-cum-fitness and the petitioner being the most suitable candidate, was entitled to be promoted as Administrative Officer (B-16) but the Selection Board has appointed respondent No. 8 against law and the rules, in utter disregard of the scheme of law, which fact has also not been taken into consideration by the learned High Court. The learned counsel submitted that the quota reserved for filling in the post in question by transfer has already been exhausted and the disputed post falls within the promotion quota, which has illegally been filled in by transfer. Lastly the learned counsel resisted for grant of leave to appeal.
4. Sardar Muhammad Hafeez Khan, the learned advocate appearing on behalf of the petitioner, Majid Ghayas Khokhar, submitted that the impugned judgment dated 28.12.2021 has been passed by the High Court without hearing the petitioner, who was a necessary party in the case, and the review petition against the judgment dated 30.11.2021 has been dismissed by the High Court against law, which is liable to be reversed. The learned counsel submitted that in the earlier round of litigation, the petitioner had succeeded to prove his case up to the apex Court, but the respondents, in violation of the judgments of the High Court and the apex Court, have illegally appointed respondent No. 8 by transfer, against the post of Administrative Officer (B-16). The learned counsel also submitted that the quota reserved for promotion against the disputed post has already been exhausted and no post was available to be filled in by transfer but the respondents have committed grave illegality while appointing the respondent Anwar Hussain, by transfer. The learned counsel further submitted that under the provisions of Zakat Fund/Zakat Profit Fund Employees (Social Security) Benefit Rules, 2011, respondent No. 8 does not fall within the definition of 'Civil Servant', thus, he is not eligible to be inducted into regular service by transfer and posting against the post in dispute but the learned High Court while deciding the case has failed to appreciate the legal aspect of the matter. The learned counsel prayed for grant of leave to appeal.
5. While controverting the arguments of the learned counsel for the petitioners, Mr. Aftab Ahmed Awan, the learned advocate appearing on behalf of respondent No. 8 in both the petitions, defended the impugned judgments and submitted that the same are perfectly legal and in accordance with law, requiring no interference by this Court. He submitted that the private respondent has been appointed on the recommendations of validly constituted Selection 'Board and the petitioners are lacking the requisite qualification and other criteria necessary for promotion against the post in dispute. The learned counsel next submitted that the respondent is performing his duties to the satisfaction of his seniors and the post earlier held by him i.e. Admin Officer (B-16) Zakat Profit Fund has been abolished vide order dated 21.6.2021. The learned counsel emphasized that the petitioners have got no locus standi to file the writ petition before the High Court and if at all any term and condition of service of the petitioners was adversely affected from the order dated 3.6.2021, only appeal before the Service Tribunal was competent. The learned counsel submitted that Majid Ghayas Khokhar, petitioner, has already been appointed as District Zakat Officer (B-16) vide order dated 16.7.2020 on the application of his father, therefore, he cannot claim posting against the post carrying equal grade. The learned counsel submitted that the petitioner was not party in the writ petition, hence, his review petition has rightly been dismissed by the High Court as he failed to point out an or apparent on the face of record and he has also failed to raise any legal point of public importance, therefore, the petition for leave to appeal is also not maintainable. The learned counsel submitted that Shahzada Mughal, petitioner, has already challenged the vires of relevant Rules before the Service Tribunal and the appointment by transfer 16.7.2020 issued in the light of said Rules, by filing separate appeals, which have already been dismissed vide orders dated 23.12.2020 and 01.4.2021, thus he was not entitled to raise the same ground through the writ petition before the High Court. The learned counsel submitted that the said petitioner is even otherwise not eligible to be promoted as Administrative Officer (B-16), as he does not possess the requisite qualification and eligibility criteria.
6. Mr. Mazhar Waheed Khan, the learned Additional Advocate-General, representing the official respondents, adopted the arguments of the learned counsel for the private respondent and opposed the grant of leave to appeal.
7. We have heard the learned counsel for the parties and perused the record made available alongwith the impugned judgment with utmost care.
8. A cursory view of the record reveals that this is the second round of litigation on the subject lis. As per record, due to promotion of one Syed Riazul Hassan Gilani as Assistant Administrator Zakat (B- 17), vide notification dated 06.01.2012, a post of Administrative Officer (B-16) fell vacant, which was to be filled in under the AJ&K Zakat and Ushr (Department Service) Rules, 201.8. The Rules provide for filling in the post; 70% by promotion on the basis of seniority-cum-fitness from amongst the Senior Aud Stenographers/Senior Clerks (B-14) with 3 years' service qualification of Bachelor degree and 30% by transfer on the basis of selection on merit and suitability from amongst the officers (B-16) of Zakat Fund and Zakat Profit Fund, having at least 10 years experience with the qualification of Bachelor Degree. Both the petitioners, herein, claim to be eligible for promotion against the post in dispute against 70% promotion quota. In the first round of litigation, Majid Ghayas Khokhar, Petitioner, filed a writ petition before the High Court with the direction to the official respondents to forward the working paper for his promotion against the post in question, which was accepted vide judgment dated 29.1.2020 with direction to place his case before the Selection Board for consideration under rules, within a period of three months. The private respondent, herein, also filed a writ petition for a direction to appoint him against the disputed post by transfer. He challenged the judgment dated 29.1.2020, passed by the High Court, through an appeal before this Court, which was accepted with the direction to the High Court to take up both the writ petitions; i.e. one filed by the petitioner and the other by the private respondent, simultaneously and decide the same within a period of two months. Ultimately, the learned High Court, through its consolidated judgment dated 15.10.2020, disposed of both the writ petitions in the manner that the Department shall proceed in the matter in accordance with law and finalize the matter within a period of one month. Respondent No. 8, again challenged the judgment dated 15.10.2020 before this Court, by filing a petition for leave to appeal, which was dismissed through the order dated 11.01.2021. After final adjudication of the matter and on the direction of this Court, the meeting of the Selection Board was convened. The Selection Board, after examining the suitability and other criteria, has recommended respondent No. 8, herein, who has been appointed against the post of Administrative Officer (B-16) vide order dated 3.6.2021. Shahzada Mughal, petitioner, herein, challenged the. order dated 3.6.2021 before the High Court by filing a writ petition, which has been dismissed through judgment dated 30.11.2021 and a review petition filed by Majid Ghayas Khokhar against the judgment dated 30.11.2021 has also met the same fate.
9. In our unanimous opinion, both the petitioners are civil servants, serving in the Zakat and Ushr Department. Under section 4 of the Azad Jammu and Kashmir Service Tribunals Act, 1975, a civil servant who holds a civil post in the service of Azad. Jammu and Kashmir or is employed in connection with the affairs of the Government can raise his grievance in respect of his terms and conditions through an appeal before the Service Tribunal. Promotion is one of the terms and conditions of service and under law, the matters relating to the terms and conditions of service cannot be agitated in writ jurisdiction. This Court, while deciding the case reported as Syed Rasheed Hussain Shah vs. Azad Government & 6 others [2014 SCR 883], held as under:- "5. We have heard the arguments of the learned counsel for the parties at some length and perused the record alongwith the impugned judgment. We would like to attend the question of jurisdiction at first. The controversy raised in the writ petition pertains to the promotion of the appellant which admittedly is one of the terms and conditions of the service. Under section 4, of the Service Tribunals Act, 1975, if any civil servant is aggrieved of any final order passed against him whether appellate or original, he has a right to file appeal in the Service Tribunal, but the appellant failed to avail the remedy at proper forum. Under section 47 of the Interim Constitution Act, 1974, writ petition is not maintainable in the matters falling in the definition of terms and conditions of service. In our view, to resolve such controversy, the Service Tribunal has exclusive jurisdiction in the matters falling within the ambit of terms and conditions of service except the matter where the jurisdiction of the Service Tribunal is barred by express provision of any act of legislature ....
It has further been observed by this Court in the report (supra), as under:--- "..... The Constitution has clearly ousted the jurisdiction of all the Civil Courts including the High Court and conferred exclusive jurisdiction to the Service Tribunal in the matters relating to the terms and conditions of the civil servants. An Authority clearly declared to be incompetent under Constitutional provisions cannot adjudicate upon the service matters for which the competent forum is available. Reliance can be placed to a case reported as Khalid Mahmood Wattoo v.
Government of Punjab & others [1998 SCMR 2280] wherein it has been observed:- "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." Our this view is further fortified from another case reported as Raja Naveed Hussain Khan & others v. Qazi Khalil-ur-Rehman and others [1994 SCR 267] wherein it has been held that:- `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. Thus, keeping in view the dictum laid down by this Court, it can safely be concluded that the petitioners have got no locus standi to challenge the order of promotion of respondent No. 8 in writ jurisdiction. In this background, the deliberation on dismissal of review petition filed by Majid Ghayas Khokhar, petitioner, is no more required.
10. Even on merits, the petitioners have got no case because respondent No. 8 has been appointed on the recommendations of the Selection Board and the Court cannot sit as an appellate forum to examine the opinion duly arrived at by the Selection Board, which consists of the experts in the matter of selection, unless the same is found perverse, capricious, arbitrary, against law or any serious violation of statutory rules holding the field is pointed out. While dealing with the case of Majid Ghayas Khokhar, the Selection Board has come to the definite conclusion that he has already been promoted as District Zakat Officer (B-16) vide order dated 16.7.2020, thus, he cannot be considered against the quota reserved for Stenographers, against which he claims his promotion.
It has rightly been observed that after accepting his promotion to the post of grade BPS-16, he cannot be considered against the quota inter alia reserved for Stenographers, against which post he had been serving prior to his promotion as District Zakat Officer. Similarly, the case of Shahzada Mughal has also been taken up by the Selection Board and he has been denied the promotion on the ground that he lacks three years' experience as Senior Clerk (B-14). It is worth mentioning here that the petitioners have never called in question the observations made by the Selection Board, rather they are claiming the promotion against 70% quota, which has already been adjudicated upon in the earlier round of litigation. No illegality or arbitrariness has been pointed out in the selection process. As observed earlier, adjudication and assessment of the suitability of a candidate is the sole prerogative of the Selection Boards or the Committees, and the Courts always remain slow to interfere with their domain and hesitate from substituting the findings of the Selection Board or Committee, as the case may be, in appeals. We are fortified in our view from the case of Syed Rasheed Hussain Shah (supra) whereby this Court observed as under:- .... The matters of determination of fitness for promotion of a civil servant to a higher post is the job of the Authority. No Tribunal or Court can substitute its own view for the view of the competent Authority, however, all the executive orders are subject to judicial review ...."
The same view has been reiterated by this Court in the case reported as Faisal Hussain & 4 others vs. Competent Authority & 13 others [2020 SCR 437], wherein it has been observed that assessm ent of suitability of a candidate for appointment, being subjective assessment, exclusively falls within the domain of the appointing authority and interference can only be made if the element of mala fide and unfairness not only alleged but also substantiated by producing concrete proof or evidence.
In view of the above discussion, we have come to the conclusion that no question of law of public importance is involved in these petitions for leave to appeal. Leave to appeal cannot be granted in each and every case only to create false hope in the mind of a party. Resultantly, finding no force in these petitions for leave to appeal, the same are hereby dismissed by leaving the parties to bear their own costs, Resultantly, the ancillary applications also stand dismissed.