Raza Ali Khan, J.--The captioned appeal, by leave of the Court, has been filed against the judgment of the High Court, dated 28.04.2022, whereby, the writ petition filed by the respondents, wore advertised in herein, has been accepted.
2. The brief facts forming the background of the captioned appeal are that the respondents, herein, were appointed as the Constable, BPS-5, vide order dated 16.04.2010. Thereafter, they completed 14 months training and performed their duties at Mangla Dam Raising Project, till 31.12.2014. They were relieved from the aforesaid project and were directed to report in the Reserve Police Muzaffarabad vide order dated 24.11.2014. In compliance of the aforesaid order the respondents herein, reported back in reserve Police Muzaffarabad, however, without any notice their services were terminated by the concerned officials. Respondents, herein, submitted applications before the Inspector General Police regarding their adjustment on 12.02.2015, but meanwhile, amongst others, the said disputed posts were advertised in "Daily Khabrain" dated 11.01.2014, hence the respondents filed writ petition by challenging the said advertisement on 17.02.2015. Later on, a Government notification dated 2.04.2015 was issued for their adjustments, hence, the writ petition was withdrawn with the further permission to file fresh one. It was stated that the respondents time and again made requests for implementation of the notification dated 02.04.2015, but the respondents instead of adjusting them again advertised the disputed posts for initial recruitment through National Testing Service (NTS) on 05.01.2015, it was alleged that the Home Department has issued notification dated 02.04.2015, for adjustment of the respondents but the Police Department failed to implement the aforesaid notification. Feeling aggrieved the respondents, herein, filed a writ petition before the High Court, seeking implementation of the notification dated 02.04.2015. The learned High Court accepted the writ petition, however the petition for leave to appeal against the said judgment of the High Court, was filed before this Court. This Court vide its judgment dated 18.11.2016, dismissed the petition for leave to appeal. It was stated that, in compliance of the said judgment, the appellants, herein, adjusted the respondents vide order dated 10.02.2017 on contract basis. Later on, vide another notification dated 17.10.2018, the words "Contract a Basis" have been deleted. The respondents, herein, again filed a writ petition before the High Court on 17.07.2019, by praying that the appellants, herein, may be directed to treat the permanent adjustment of the respondents against the posts of Constables with effect from the date of issuance of notification dated 02.04.2015, declaring them as entitled for benefits of service and salary with effect from 02.04.2015. The learned High Court after necessary proceedings through impugned judgment dated 28.04.2022, has accepted the writ petition against which the instant appeal has been filed.
3. Raja Mazhar Waheed Khan, the learned Additional Advocate-General representing the appellants argued the case at some length and stated that the impugned judgment passed by the learned High Court is illegal, erroneous and against law as well as the record of the case, which is liable to be set aside. He submitted that the grievance of the respondents, herein, to the extent of their permanent induction has already been redressed by the department in light of the judgments of the High Court and this Court, dated 01.07.2016 and 18.11.2016, respectively, vide notification dated 17.10.2018, hence, now they could not claim their adjustment with retrospective effect and they had no locus standi to file the writ petition but this aspect of the matter has not been considered by the learned High Court. He further submitted that the impugned judgment passed by the learned High Court is self-contradictory as at one hand the learned High Court has observed that retrospective effect cannot be given to a government notification while on the other hand issued direction for adjustment of the respondents, herein, with retrospective effect. He further submitted that after the issuance of notification dated 17.10.2018, the grievance of the respondents was to be solved at proper forum but instead of approaching proper forum they filed writ petition in High Court and High Court passed the impugned judgment which is not maintainable at all. He submitted that the respondents while depending upon the impugned notification filed writ petition, the Police through Interior Department moved the said notification before the Government due to which the same could not be finalized. He finally prayed for the acceptance of this appeal.
4. On the other hand, Sardar M.R. Khan, the learned Advocate representing the respondents strongly controverted the arguments advanced by the learned counsel for the appellants while submitting that the impugned judgment is quite in accordance with law, hence, interference of this Court is not warranted. The learned counsel further submitted that earlier the learned High Court and this Court directed to implement the notification dated 02.04.2015, but the department instead of implementing the same procrastinated the matter on one or the other pretext. He added that after the judgments of the learned High Court and this Court, right had been accrued in favor of the respondents and they cannot be deprived of the same due to delay caused by the department.
Moreover, the notification dated 02.04.2015, is beneficial to the extent of rights of the respondents, hence, the learned High Court has rightly declared the respondents entitled to have benefits of the same. He lastly prayed for the dismissal of the appeal.
5. We have considered the arguments of learned counsel for the parties and have gone through the record of the case. It transpires from then record that the appellants were appointed initially vide order dated 16.04.2010 on the recommendations of respective Selection Committee, however, after completion of their 14 months training, they were ordered to perform their duties in Mangla Dam Raising Project till 31.12.2014. After relieving from the aforesaid project without any notice their services were terminated, however, vide notification dated 17.10.2018, they were appointed/adjusted on permanent basis. According to the prayer clause of the writ petition filed by the respondents, herein, their claim is that the appellants, herein, may be directed to treat the permanent adjustment of the respondents against the posts of Constables with effect from the date of Issuance of notification dated 02.04.2015. It would Be useful to reproduce, here the prayer clause of the Writ petition which reads as follows: "It is therefore, prayed on behalf of a petitioners that this Hon'ble Court may very graciously be pleased to issue high prerogative writ directing the non-petitioners to treat the permanent adjustment of petitioners against the post of Constable with effect from the date of issuance of notification dated 02.04.2015 declaring the petitioners as entitled for the benefits of service and salary with effect from 02.04.2015. Any other relief which is just and proper in the estimation of this Hon'ble Court may also be granted to petitioners in the interest of justice."
6. The most pivotal point which emerged in this appeal is relating to the jurisdiction of the High Court. It is now almost settled that in the matters of terms and conditions of service the jurisdiction vests in the Service Tribunal in exclusion of the jurisdiction of the High Court. The respondents, who have admittedly been appointed on permanent basis vide notification dated 17.10.2018, approached the High Court for seeking direction to declare them entitled for the benefits of service and salary with effect from 02.04.2015. According to the statutory provisions of Civil Servants Act, 1976. The matter pertaining to the salary and other emoluments of civil servants exclusively fall within the jurisdiction of the Service Tribunal. In this scenario, here the question arises whether the respondents were justified to file the writ petition for seeking direction from the High Court regarding payment of salary and others benefits of service, appears to be very serious proposition.
When the exclusive jurisdiction relating to the terms and conditions of the service vests in the Service Tribunal in the provision of Article 47 of the Azad Jammu and Kashmir Interim Constitution, 1974, where relating to these matters still the High Court may exercise the writ jurisdiction in shape of issuance of direction which indirectly amounts to determination of question of terms and conditions of service and where in such like matters the High Court can grant interim injunction prohibiting the authority to exercise the powers relating to the terms and conditions of the service.
This point has already been authoritatively dealt with in full Court judgment of this Court reported as Ejaz Ahmed Awan and others vs. Syed Manzoor Ali Shah and others [1999 SCR 204], whereas all these aspects have been covered by this Court. It would be useful to reproduce here the principles laid down in the before the Referred judgment.
"(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 favourable 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 be allowed for the in this reconsideration and final disposal of the matter. In such cases High Court cannot issue direction to the relevant departmental authorities not to withdrew 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 court 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, a promotion, posting etc.
(6) 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 exercised only if then High Court is satisfied that the departmental authorities are procrastinating or contumaciously refuse a final order."
The principles of law enunciated in this judgment have been consistently followed by this Court and there are a number of judgments in this regard some of which are Rakhsanda Kokab and others vs. Kaneez Akhtar and others [1999 SCR 282], Azad Govt. and others vs. Hadayatullah Khan [2016 SCR 688] Syeda Zainab un Nisa Kazmi vs. District Education Officer and others [2015 SCR 1246]. In this context we would also like to refer here the view of this Court in the latest judgment reported as Tahira Farooq vs. Dr. Muhammad Qasim and others [2018 SCR 86], wherein it has been held that: "6. The argument of the learned counsel for the respondents that as no final order was issued, thus, the respondents were justified to file the writ petition for seeking direction and prohibition against the authority, appears to be very serious proposition. When the exclusive jurisdiction relating to the terms and conditions of service vests in the Service Tribunal under the provisions of Section 47 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, whether relating to these matters still the High Court can exercise the writ jurisdiction in shape of issuance of direction which a indirectly amounts to determination of question of terms and conditions of service and whether in such like matters the High Court can grant interim injunction prohibiting the authority to exercise the powers relating to the terms and conditions of service; for resolution of these propositions no extra labour is required as in an authoritative full Court judgment reported as Ejaz Ahmed Awan and others vs. Syed Manzoor Ali Shah and another [1999 SCR 204] all these aspects have been covered by this Court. This judgment is holding the field wherein the principle of law has been expressly enunciated that relating to the terms and conditions of civil servants the writ jurisdiction cannot be exercised. If a civil servant apprehends any adverse order, he will have to wait till issuance of such order and thereafter may challenge the same through the appeal but the writ of prohibition cannot be filed. It has been clearly defined and demarcated that only if the application, appeal or review etc. relating to departmental remedy in the matters of terms and conditions of civil servants are not timely attended and decided then the remedy of issuance of direction to the departmental authority can be sought for disposal of such matter but that too without recording any findings relating to the terms and conditions of service."
In view of the above discussion, the learned High Court has committed grave illegality while accepting the writ petition filed by the respondents, therefore, the impugned judgment is hereby set-aside and the writ petition filed by the respondents before the High Court stands dismissed.
Consequently, this appeal is hereby accepted.