The captioned writ petitions have been addressed under Article 44 of the Azad Jammu and Kashmir Interim Constitution, 1974.
2. As common question of facts and law is involved in the instant petitions, hence, the same were consolidated and are being decided through this single judgment.
3. Synthesized facts as per version of the petitioner taken in Writ Petition No. 227/22 are that petitioner was initially appointed as Assistant against contingent paid staff (CPS) on lump-sum paid of Rs. 8000/-per month vide order dated 03.2.2011, which was extended time and again and thereafter, he was appointed on contract/ temporary basis against post of Assistant BPS-14 vide order dated 16.07.2013. It has been stated that the post of Assistant was upgraded from BPS-14 to BPS-16 vide notification dated 19.05.2015 while on the recommendation of Selection Committee held on 09.09.2016, the authority confirmed the contract appointment of the petitioner as Assistant BPS-16 vide order dated 10.12.2018 and in response thereof, he submitted his joining report on the same day. It has further been stated that the other employees of the University of Azad Jammu & Kashmir were confirmed/promoted from the date of recommendation of the Selection Committee held on 09.09.2016 rather the case of the petitioner was also approved in 40th Meetings dated 09.09.2016 but without any legal justification, the confirmation order was not issued for elapsing more than two years period, which is clear violation of Sections 14, 17 & 18 of The University of Azad Jammu & Kashmir Service Statutes, 1981 wherein temporary service without break shall be counted towards the seniority, hence, the period of temporary appointment commencing from 03.2.2011 shall be reckoned towards the period of probation of the petitioner. It has been averred that in order to correct the conformation order of the petitioner dated 10.12.2018 as well as seniority list of Assistant BPS-16, he approached the authority but the needful was not done and later on, the official respondents on the basis of old seniority list dated 27.3.2018 prepared for Assistant BPS-16 illegally promoted private Respondent No. 7 against the post of Superintendent BPS-17 vide notification dated 1.06.2021 w.e.f the date of Selection Board i.e. 17.12.2020 and whose initial date of appointment is 28.07.2015 while the petitioner was recruited as Assistant BPS-16 03.2.2011, hence, the impugned notification dated 01.06.2021 being contrary to law may be set-aside and permanent order of the petitioner as well as seniority list may also be amended to that effect. It has been craved that the petitioner has no alternate and efficacious forum except to invoke the jurisdiction of this Court, hence, this writ petition.
4. In writ petition No. 277/22, the petitioner-Raja Iram Usmani, raised the similar assertions as incorporated above in detail, however, he challenged the impugned promotion notification of private Respondent No 7 dated 01.06.2021 on the ground that the petitioner's initial appointment is 04.3.2010 whereas private respondent was initially recruited on 28.07 2015, hence, the seniority list and confirmation order of the petitioner 10.12.2018 may be amended to that effect and a probation has been sought to promote private Respondent No. 8 against the post of Superintendent BPS-17 on the basis of old seniority list dated 27.3.2018 to meet the ends of justice.
5. The petitioners in Writ Petition No. 1119/22, made similar assertions as mentioned in pre-paras and claimed that the official respondents may be directed to consider their temporary appointments and count the same from their initial recruitment against the posts of Assistant BPS- 16 in view of rules and policy notification dated 18.11.2014 and in this regard their permanent appointment orders and seniority list may be amended till then issuance of appropriate order/seniority, no further promotion may be made against the post of Superintendent BPS-17, hence, the promotion order of private Respondent No. 7 dated 01.06.2021 may be- set-aside because the same was issued during the pendency of appeals.
6. On Court notice, the official respondents through their Legal Advisor filed parawise comments and private Respondent No. 7-Shahid Rasool also filed the same wherein the averments taken in writ petitions by the petitioners were repudiated from top to bottom and it has been stated that the petitioners have no locus-standi to file the instant writ petitions because the relief sought by them in their respective pleadings cannot be granted under law retrospectively rather the petitioners have already invoked the jurisdiction of proper forum, by filing appeals, hence, in presence of alternate remedy, jurisdiction of this Court cannot be invoked. It has been prayed that writ petitions may be dismissed at preliminary stage.
7. It is apparent on the face of record that the petitioners have already invoked the jurisdiction of proper forum by filing appeals for counting their temporary service, towards permanent service, which are pending adjudication while the official respondents in their comments stated that the petitioners already invoked the jurisdiction of proper forum, hence, in presence of alternate and efficacious remedy, the jurisdiction of this Court cannot be invoked. As the appeals filed by the petitioners are pending adjudication before the proper forum, hence, in the instant writ petition no reasonable grounds appear to have whatsoever been established for which the constitutional jurisdiction of this Court has been invoked. Thus, in presence of alternate and efficacious remedy, an extra-ordinary jurisdiction of this Court by-way of writ petition under Article 44 of the Azad Jammu & Kashmir Interim Constitution, 1974 cannot be invoked because such jurisdiction is invoked or exercised in extra-ordinary situation where there is no alternate forum is available to the aggrieved party while the writ petitions in the given circumstances are not maintainable. Similar proposition has been resolved by the apex Court in a case titled Muhammad Munir vs. Chairman/Chairperson AJ&K Board of Intermediate & Secondary Education & 3 others (2006 SCR 29] wherein it has been held that: "Without availing remedy under the statute particularly where right of appeal is provided the filing of writ petition in the High Court cannot be justified. If the appellant would have availed right of appeal before the Board and the same would have remained unattended for indefinite period only then he could have availed writ jurisdiction of the High Court seeking direction to decide his appeal at earliest. As the remedy of writ was availed without availing the alternate remedy of appeal before the Board, therefore, no error was committed by the learned Chief Justice of the High Court while dismissing his writ petition."
Similar views have been expressed by the Hon'ble Supreme Court of Pakistan in an authoritative judgment reported as Dr. Sher Afgan Khan Niazi vs. Ali S. Habib and others [2011 SCMR 1813] wherein some guidelines have been given: The learned High Court will have to consider in each case the following tests to be applied to determine the adequacy of the relief:-
(i) If the relief available through the alternative remedy in its nature or extent is not what is necessary to give the requisite relief, the alternative remedy is not an "other adequate remedy" within the meaning of Article 199.
(ii) If the relief available through the alternative remedy, in its nature and extent, is what is necessary to give the requisite relief, the 'adequacy' of the alternative remedy must further be judged, with reference to a comparison of the speed, expense or convenience of obtaining that relief through the alternative remedy, with the speed, expense or convenience of obtaining it under Article 199. But in making this comparison those factors must not be taken into account which would themselves alter if the remedy under Article 199 were used as a substitute for the other remedy.
In practice the following:
(iii) Steps may be taken:-
(a) Formulate the grievance in the given case, as a generalized category;
(b) Formulate the relief that is necessary to redress that category of grievance;
(c) See if the law has prescribed any remedy that can redress that category of grievance in that way and to the required extent;
(d) If such a remedy is prescribed the law contemplates that resort" must be had to that remedy;
(e) If it appears that the machinery established for the purposes of that remedy is not functioning properly, the correct step to take will be a step that is calculated to ensure, as far as lies in the power of the Court, that that machinery begins to function as it should. It would not be correct to take over the function of that machinery. If the function of another organ is taken over, that other organ will atrophy, and the organ that takes over, will break down under the strain;
(f) If there is no other remedy that can redress that category of grievance in that way and to the required extent, or if there is such a remedy but conditions are attached to it which for a particular category of cases would neutralize or defeat it so as to deprive it of its substance, the Court should give the requisite relief under Article 199;
(g) If there is such other remedy, but there is something so special in the circumstances of a given case that the other remedy which W.P. No. 30787-2021 12 generally adequate, to the relief required for that category of grievance, is not adequate to the relief that is essential in the very special category to which that case belongs, the Court should give the required relief under Article 199.
If the procedure for obtaining the relief by some other proceedings is too cumbersome or the relief or cannot be obtained without delay and expense, or the delay would make the grant of the relief meaningless this court would not hesitate to issue a writ If the party applying for it is found entitled to it, simply because the party could have chosen another course to obtain the relief which is due."
8. In View of settled principles, the captioned writ petitions are not maintainable in the eye of law because writ lies where there is no alternate and efficacious forum available to the aggrieved person for redressal of his grievance or sheer violation of rules and departure of law has been made but in the instant cases, no such situation exists. Even otherwise, the petitioners in the instant writ petitions sought modifications in their permanent appointment orders to count their initial appointments towards seniority, which appear to have been filed after elapsing pretty long time, hence, the same are clearly hit by doctrine of lathes.
9. However, for sake of safe administration of justice, I have also scrutinized the case of the petitioners on merit. A contemplate perusal of record shows that petitioners-Syed Shujahat Ali Kazmi and Raja Iram Usmani, were initially appointed as Assistant BPS-14 against contingent paid staff (CPS) on sump sum paid of Rs. 8000/-per month vide orders dated 03.2.2011 & 04.3.2010 respectively, which appointments were extended time and again and thereafter, their appointments were made on contract basis even dated orders 16.07.2013 whereas the post of Assistant BPS-14 was up-graded in BPS-16 vide notification dated 19.05.2015. The case of temporary employees of the University of Azad Jammu & Kashmir was taken up in 40th Meetings of Syndicate for relaxing the condition of advertisement of the posts occupied by them and after approval, a formal notification was issued on 18.11.2014 whereby the petitioners were considered in view of condition (c) of the said notification, which is hereby reproduced as under: "Those employees of BPS-5 to 16 are appointed a contract/adhoc/CPS and have served for five years, will be appointed on permanent basis, on the basis of seniority against the available vacant posts through selection committee in the light of criteria for the direct appointment of the said posts."
10. In the light of the aforesaid notification, the Permanent appointment orders of Petitioners, Syed Shujahat Ali Kazmi and Raja Iram Usmani, were issued on the recommendation of selection committee held on 09.09.2016 vide even dated orders 10.12.2018 and in compliance thereof, they submitted their joining reports on the same day. Meaning thereby that their seniority shall be counted from their regular appointment i.e. 10.12.2018 rather the same can only be counted for the purpose of pay protection, pension and monitory benefits under law.
11. It is worthwhile to mention here that the petitioners claimed to give retrospective effect of their permanent appointments towards seniority w.e.f. the date of their initial temporary appointments as given to the other employees vide even dated orders 18.09.2018. It appears from bare reading of the said orders that Senior Clerks Zaffar Iqbal & Muhammad Nazir Awan were promoted against posts of Assistant BPS-16 and Abdul Ghafoor Junior Clerk was promoted against the post of Senior Clerk BPS-14 from the date of recommendation of selection committee and it is nowhere mentioned that they being contract employees were promoted, hence, the arguments to that extent are hereby misconceived and repelled.
12. Adverting to the promotion notification of private respondent, Shahid Rasool, dated 01.06.2021, it is evident from seniority list dated 27.3.2018 that he is falling at serial No. 35 of the said list rather his initial appointment on regular basis, made against the post of Assistant BPS-16, is 28.07.2015 whereas the posts held by the petitioners were regularized vide even dated orders 10.12.2018, however, if they considered from the date of recommendation of selection committee i.e. 09.09.2016 even then the private respondent, Shahid Rasool was initially recruited against the post of Assistant BPS-16 on 28.07.2015 much earlier before recommendation of selection committee dated 09.09.2016 and after acceptance of terms. and conditions of service, they submitted joining reports before the competent authority. Record further reveal that both petitioners submitted separate representations for determination of seniority and other remunerations on 26.11.2019 & 17.3.2020 on which the official respondents vide even dated letters 26.08.2020 intimated the petitioners that the benefit of contract appointment can be given for pension not for other purpose.
On the above point, similar proposition has been resolved by the apex Court titled Abdul Majeed Bandy vs. Azad Government and others in Civil Appeal No. 66 of 2004 decided on 12.07.2005 wherein it has been held that: "As far as ante-dated promotion is concerned, it is not approved by any law or rule, however, the Government is empowered under its general powers vested under section 22 of the Civil Servants Acts to deal with the case of any civil servant in such manner as may appear to it to be just and equitable. As the respondents were allowed selection grades B-17, they were given ante-dated promotion from the dates of their placement in B-17 for the purpose of monitory benefits and perks.
The seniority is reckoned from different set of principles, while ante-dated promotion is not governed by any rule of law, except the general powers of the Government to meet the hardship in given cases. The notifications whereby, respondents are allowed the ante-dated promotion, therefore, do not bestow upon them the right of seniority from the dates they are given the ante- dated promotion."
While dealing the dispute of seniority the Hon'ble Supreme Court resolved similar matter in a case titled Musa Jan and 4 others vs. Arbab Shaheen Naib Tehsildar and 26 others [PLJ 2018 SC (AJ&K) 47], which strengthens my correct stance in which it has been held that: "Under the law, the seniority can be claimed by a civil servant in a grade from the date of regular promotion. The ante-dated seniority cannot be given to a civil servant on the basis of an order 'of appointment which is temporary in nature cannot confer any right except pay protection."
13. For the sake of arguments, if the claim of the petitioners is admitted to the extent of giving effect to their permanent appointments from the date of recommendation of selection committee i.e. 09.09.2016 even then it is a sole prerogative of the selection committee to give effect of regular appointment from the date of recommendation of the selection committee. Law is quite clear on the subject-matter that seniority shall be counted from the date of regular appointment for which no retrospective effect can be given, hence, at this stage, this Court cannot assume the role of selection committee after passing more than four years, which is an administrative matter falling within the exclusive jurisdiction of the competent authority and such matter would better know to them because both petitioners were receiving their pay against some other posts during the contract period while Sections 14, 17 & 18 of The University of Azad Jammu & Kashmir Service Statutes, 1981 appear to have wrongly been interpreted by petitioners in their favour, which create false hopes and are not applicable pertaining to counting temporary service towards seniority, hence, the petitioners failed to make out their case for admission.
14. Coming to Writ Petition No. 1119/22, the petitioners almost claim the same relief as asserted by the petitioners in preceding paras, which have specifically been answered, which need not to be discussed here for sake brevity. The petitioners, Tahir Ayub & others, were appointed against the post of Assistant BPS-16 on regular basis w.e.f. the date of recommendation of respective selection committee i.e. 01.09.2020 vide even dated orders 11.09.2020, hence, for proper appreciation of the matter, terms and conditions formulated in their appointment orders are hereby reproduced as under: "Terms & Conditions:
1. The appointee shall be on probation for a period of two Years.
2. The appointment shall take Effect from the date of Selection Committee i.e. 01.09.2020.
3. In all other matters, services of the appointee shall be governed by the statutes and rules of the University enforced from time to time.
If the above terms and conditions are acceptable to the appointee, the appointee is required to submit his joining report to the Registrar, University of AJ&K Chehla Campus, Muzaffarabad within 15 days from the date of issuance of this order, failing which the order shall stand cancelled."
15. So when the petitioners themselves accepted the terms and conditions of their regular appointment orders and submitted their joining reports within a stipulated period and later on, they cannot deviate from their earlier. Stance, hence, no retrospective effect can be given to the petitioners from the date of their temporary appointments toward seniority under the law of estoppel and acquiescence. This view finds support from a case titled Azad Govt. and 3 others vs. Mrs. Jamshed Naqvi and 2 others [2014 SCR 13] wherein it has been held as under: "From the record it is amply proved that the respondent himself moved. Application for contract appointment. After being unsuccessful in obtaining desired results, she filed writ petition. By her conduct she is estopped from filing the writ petition. The same was liable to be dismissed on the ground of estoppel and acquiescence."
16. By taking into account the real controversy between the parties in view of above quoted case law, the petitioners in all the petitions are neither aggrieved party within the ambit of Article 44 of the Azad Jammu & Kashmir Interim Constitution, 1974 nor have locus-standi to invoke an extra- ordinary Jurisdiction of this Court by way of writ petition because such jurisdiction can only be invoked or exercised in extra-ordinary situation, which eventuality does not exist.
17. The nutshell of the foregoing is that no substantial question of law is involved to be interpreted in the instant writ petitions, hence, the same are hereby dismissed in limine in the manner as indicated above.