Kh. Muhammad Nasim, J. This appeal, by leave of the Court, has arisen out of the judgment of the High Court dated 18.02.2020, whereby, Writ Petition No. 316/2018, filed by the respondents, herein, has been accepted.
2. The controversy in this appeal is related to give the retrospective effect to the notification dated 25.05.2017, from the date of approval of the Rules Framing Committee i.e. 27.11.2007. According to the stated facts of the case, the respondents, herein, who are employees of Public Works Department (PWD), were serving as Draftsman in grade BPS-10, filed a writ petition before the High Court soliciting therein that vide notification dated 25.05.2017, the post of Draftsman has been awarded BPS-11, whereas, the Rules Framing Committee approved the said rales on 27.11.2007, hence, the notification issued by the Services and General Administration Department, may be amended with effect from 27.11.2007. Through the impugned judgment the learned High Court while accepting the writ petition directed the respondents, therein, to give retrospective effect to the notification dated 25.05.2017, which is the subject matter of the captioned appeal with our leave.
3. Raja Mazhar Waheed Khan, the learned Additional Advocate-General, while appearing on behalf of the appellants seriously objected the impugned judgment on the ground that the proceedings in the hearing of writ petition have not been conducted according to the High Court Procedure Rules, 1984, and has been decided without providing an opportunity to file written statement to the appellants, herein, which is not only violation of statutory provisions of the said rules but also against the fundamental principle of natural justice. He added that the learned High Court has accepted the writ petition on written statement filed by the Secretary Communication and Public Works Department, Chief Engineer, PWD (North) and Chief Engineer PWD (South), Respondents No. 2, 6 and 7, therein, respectively, whereas, they were not the only relevant respondents and the version of the other respondents/appellants, herein, was essential to be placed before the High Court for just and lawful decision of the matter in light of the dictates and objects of the Rules of Business, 1985. He submitted that the notification dated 25.05.2017, has been issued from the office of Services and General Administration Department. The petitioners, therein, have arrayed Secretary, Services and General Administration Department, as party in the line of respondents but Services and General Administration Department was not arrayed. He further submitted that Finance Department was also necessary party but the same too was not arrayed as party in the line of respondents rather only the Secretary of the said department was arrayed, therefore, the writ petition was incompetently filed and was liable to be dismissed but the learned High Court did not consider this important aspect of the case and illegally accepted the writ petition.
4. On the contrary, Ch. Ghulam Nabi, Advocate, the learned counsel for the respondents forcefully opposed the arguments addressed on behalf of the appellants while submitting that the impugned judgment is, perfectly legal which is not open for interference by this Court. He argued that the Departmental Service Rules were amended in compliance of the previous judgment of the learned High Court dated 19.10.2015 and this fact has also been admitted by the appellants, herein, in ground "C" of the appeal. He further submitted that the arguments on behalf of the appellants that the matter relates to the terms and conditions of service is misconceived. The writ petition was filed for issuance of direction, thus, the question of lack of jurisdiction does not arise. In such like matters only the High Court is competent to entertain and decide the lis. On query of the Court regarding the necessary party, the learned counsel submitted that Secretary Finance and Secretary, Services and General Administration Department, were duly arrayed as party in the writ petition.
5. We have considered the arguments of the learned Advocates representing the parties and examined the record made available along with the impugned judgment. A perusal of the record reveals that the respondents, herein, filed a writ petition in the High Court with a following prayer: "It is, therefore, very humbly prayed on behalf of the petitioner that this Hon'ble Court by accepting the instant writ petition be pleased to direct the respondents to give the retrospective effect to the notification dated 25.05.2017 from the date of approval of Rules Framing Committee, dated 27.11.2007. Any other relief which the petitioner is entitled, may kindly be granted in the interest of justice."
The Azad Jammu and Kashmir Public Works Department Draftsman and Tracers (Building, Roads and Electricity) Rules, 1979, were amended vide notification dated 25.05.2017. The respondents, herein, filed writ petition in the High Court for seeking direction to give effect the said notification from 27.11.2007, the date of approval of the Rules Framing Committee in this regard. The said notification was issued from the office of the Services and General Administration Department, but the petitioners, therein, arrayed Secretary, Services and General Administration Department, as party in the line of respondents. The same way, Secretary Finance has been arrayed in the line of respondents, whereas, the Services and General Administration Department and Finance Department were necessary parties and without impleading them in the line of respondents, the writ petition was not maintainable. Our this view finds support from a case titled Azad Govt. and others vs. Muhammad Younas Abbasi and others [2016 SCR 887], wherein, it was observed as under:- "7. Through the impugned judgment the Finance Department has been directed to implement the Chief Executive's Order dated 09.12.2007.
According to respondents-petitioners own produced record, the Chief Executive has not issued any direction to Finance Department rather the direction was issued to the Secretary of the Food department for processing the case. It is also correct that the petitioners in the writ petition have not prayed for issuance of direction for implementation of Chief Executive's order rather they approached the Court for issuance of direction to all the respondents including the Government for upgradation of the posts on the basis of principle of parity with Punjab. Thus, the argument of the learned counsel for the appellants has substance that the relief granted is beyond the scope of the writ petition and also contrary to record.
If, in the opinion of the High Court a direction for implementation of Chief Executive's order was justified, in that case only the Secretary of the department could be directed to process the case and not the Finance department.
The perusal of writ petition reveals that only the Secretary Finance has been arrayed as party and not the Finance department whereas according to the statutory provisions of Rule 15 of Rules of Business, 1985 it is not the Secretary but the Finance department who has to be consulted in finance matters, therefore, without arraying Finance department issuance of direction in the impugned judgment is not legal and sustainable."
Similarly, in another case tilted AJK Government and 4 others vs. MIs Spintex Limited [1998 SCR 167], this Court held that: "It will be seen that the Chief Secretary was not arrayed as respondent and is only mentioned as the officer on whom the notice addressed to the Government was to be served. It is well settled that a writ of any kind cannot be issued to a State functionary unless he is arrayed as respondent and is given adequate opportunity to present his case. There is a chain of judgments of this Court on this point. Some of them are Liaquat Ali vs. Municipal Corporation [1997 SCR 37], Barkat Hussain vs. Sardar Misri Khan [1992 PSC 724], Muhammad Nazir vs. Muhammad Ashraf [PLD 1987 SC (AJK) 16], Abdul Hamid vs. Muhammad Zameer [1990 PSC 1014], and Muhammad Resham Khan vs. Chairman Inspection Team [PLJ 1990 SC(AJK) 38]."
In our considered view it was not just and proper for the learned High Court to accept the writ petition only on the basis of the written statement filed by Respondents No. 2, 6 and 7, therein, and without having the written statements/version of the appellants, herein. Issuance of writ is a discretionary relief which could only be issued to Government and public functionaries. The principles of fair trial are inherently embedded in judicial and quasi-judicial proceedings, even if no specific provision is provided in the relevant Act or Rules. There is a complete chapter i.e. Chapter VIII, Rules 30 to 42, in the High Court Procedure Rules, 1984, for hearing and disposal of writ petition.
The issuance of writ against the government functionaries without having the version of all the necessary parties arrayed in the writ petition is not just, equitable and proper rather is against the principles of fair trial and fair administration of justice. The Government is run through different administrative departments created for specific objects and purposes. The decisions of the Government which involve different departments are not made solely by an individual department rather Rules of Business have been framed to ran affairs of Government and version of concerned department is further sent to other departments i.e. Finance Department and Law Department to have their opinion on the matter reaching any decision. The wisdom behind having the version of other departments is to consider all legal, economic and social consequences of the proposed matter. The version of one or more particular departments may not be in consonance with other departments of the Government, therefore, without having version of all the concerned Government Departments arrayed in the writ petition, issuance of writ is illegal.
6. So far as, the merits of the case are concerned, after going through the judgment of the High Court and the prayer made in the writ petition, it has transpired that the contention of the learned Additional Advocate-General that the High Court has assumed jurisdiction in violation of Article 47 of the Azad Jammu and Kashmir Interim Constitution, 1974, is correct. The abovementioned section clearly and totally prohibits the High Court from entertaining any proceeding in respect of a matter to which the jurisdiction of the Service Tribunal extends. Under Section 4 of the Azad Jammu and Kashmir Service Tribunals Act, 1975, the Service Tribunal has been vested with exclusive jurisdiction to hear appeals against final orders in respect of terms and conditions of service of a civil servant.
Reference may be made to the case reported as Ghiasul Haq and others vs. Azad Government of the State of Jammu and Kashmir Etc. [PLD 1980 SC (AJ&K) 5], wherein, it has been observed as under: "...........By virtue of Article 212 matters which are exclusively within the jurisdiction of an Administrative Tribunal or Court established by legislature under that article cannot be entertained by any other Court. The jurisdiction of all other Courts is excluded within the jurisdiction of the administrative Court or Tribunal. I inquired from Mr. Mahmood Ali and the other learned counsel to cite any authority or principle in support of the proposition that notwithstanding such exclusive jurisdiction, the administrative Court or Tribunal cannot go into the vires of the rules framed under any statute.
No such authority or principle was cited. No proceedings over which an Administrative Tribunal's jurisdiction extends can consequently be entertained by any other Court merely on the ground that the matter involves determination of the vires of any rules or statute.
The Administrative Tribunal or Court has complete jurisdiction in respect of the proceedings within its exclusive jurisdiction. The ouster of the jurisdiction of the ordinary Courts including the High Court in respect of the matters within the exclusive jurisdiction of the Administrative Tribunal or court, is so complete that even the orders of the Administrative Tribunal cannot be assailed either by a suit or by a writ petition. See Muhammad Aslam Bajwa v. Federation of Pakistan. See also Faizullah Khan v. Government of Pakistan (1) in which it was held that High Court or other ordinary Service Court have jurisdiction only in matters not amenable to the jurisdiction of the Service Tribunal Orders passed by the Administrative Tribunal or Court can be interfered with by the Supreme Court subject to the grant of special leave to Appeal. Such Court or Tribunal can, therefore, give a finding on the validity of the rules framed under a particular statute, if the question arises in connection with any matter within its exclusive jurisdiction." The decision reported as Muhammad Hashim Khan and others v. Province of Baluchistan and others and Fazal Ellahi Ejaz and 22 others v. Government of the Punjab and 13 others has recently been followed by the Sindh High Court also in Iqan Ahmed Khurrum and others v. Government of Pakistan and 7 others (2).
The contention that Service Tribunal had "No power to go into vires of the statutory rules" was repelled and it was further observed: "Reverting to the third contention that as the instant petitions involve determination of the vires of the rules, the same are not competent as the Service Tribunal has no powers to go into the vires of the statutory rules, it may be observed that in our view the Service Tribunal is competent to examine the vires of the rales or order while adjudicating upon the question as to whether an impugned order affecting the terms and conditions of an aggrieved civil servant is legal or not. Needless to mention that the Service Tribunals have been constituted with the object of providing a forum with the exclusive jurisdiction in the Service matter relating. to the terms and conditions of the civil servants, subject to an appeal to the Supreme Court. If we were to hold that the Service Tribunal has no jurisdiction to go into the vires of the Service Rules or orders, it will frustrate the object for which the Service Tribunals have been constituted, as in every case, it will be open to an aggrieved civil servant to challenge the vires of a rale or departmental instructions with the object to frustrate the provisions of the Act".
Thus, the learned High Court had got no jurisdiction to entertain the writ petition relating to the terms and conditions of persons in the service of Azad Jammu and Kashmir.
In view of the above, by accepting this appeal, the impugned judgment is recalled and the writ petition filed by the respondents/ petitioners before the High Court stands dismissed. No order as