SARDAR MUHAMMAD EJAZ KHAN, J. he captioned writ petition has been addressed under Article 44 of the Azad Jammu and Kashmir Interim Constitution, 1974 whereby vires of impugned proposal dated 23.11.2021 has been challenged for having been issued without lawful authority and further a prohibition has been sought against her present place of posting i.e. Computer Lab Assistant Govt.
Girls High School Dawarian, District Neelum.
2. Pre-admission notices were issued to the respondents for filing parawise comments/ objections vide order dated 25.11.2021, however, respondents Nos.1, 2 and 4 despite service failed to do the needful.
3. The learned counsel for the petitioner, more and less, reiterated the grounds of writ petition and argued that the impugned proposal annexure "PD" dated 23.11.2021 have been made without lawful authority, hence, the same may be set-aside and the petitioner may not be disturbed from her present assignment.
4. The learned counsel for -the intervener vehemently opposed the arguments advanced by the learned counsel for the petitioner and argued that the applicant/intervener, Shahnaz Bibi, filed an appeal before the learned Service Tribunal in which the petitioner is also contesting the appeal as respondent No.6, hence, she invoked the jurisdiction of this Court with unclean hands and suppressed the material facts from the Court while obtaining status-quo order rather the said order sought to be protected by the petitioner in the instant writ petition has been suspended by the learned Service Tribunal vide order dated 26.11.2021, hence, the instant writ petition has become infructuous and the same may be dismissed in limine.
5. Heard. Record perused. It appears from the record that the petitioner has been appointed by transfer as Computer Lab Assistant from Govt. Girls High School Dawarian to Lowat after completion of 05 years service at one station in place of intervener vide order dated 19.11.2021, which order was cancelled from the date of its issuance on the same day vide order dated 19.11.2021 against which an appeal before the learned Service Tribunal has been preferred by the intervener in which the petitioner has also been arrayed as party as respondent No.6 wherefrom the order dated 19.11.2021 sought to be protected in the instant writ petition has been suspended vide order dated 26.11.2021, therefore, the same in the present shape has become infructuous. Even otherwise, under Article 47 of the Azad Jammu and Kashmir Interim Constitution, 1974, the jurisdiction of this Court under Article 44 of the Constitution is totally ousted to adjudicate upon the service matters relating to terms and conditions of the civil servants. Admittedly, the petitioner is a civil servant and if any adverse order is passed against her, which can be challenged before the learned Service Tribunal not before this Court by invoking extra-ordinary jurisdiction of this Court under Article 44 of the Azad Jammu and Kashmir Interim Constitution, 1974. Similar proposition has been resolved by the apex Court in a case titled Muhammad Ishfaq Khan v. Muhammad Rashid Minhas and 08 others [2019 SCR 318] wherein it has been opined as under:- "Leaving aside this aspect of the matter, we are of the view that posting and transfer/appointment cannot be questioned in writ jurisdiction even if an order is void-ab-initio. We are fortified in our view by the rule of law laid down in the case reported as the Accountant General and others vs. Zaman Hussain Khan (1993 SCR 259), wherein, this Court has observed as under:- "Orders without jurisdiction can be challenged before the Service Tribunal. The High Court had no jurisdiction to entertain writs relating to service matters. Jurisdiction of High Court stands ousted."
6. Law is well settled on the point that even if any illegal or void ab initio order is passed against a civil servant, the same can be challenged before the learned Service Tribunal and jurisdiction of this Court is totally ousted due to bar contained in Article 47 of the Azad Jammu and Kashmir Interim Constitution, 1974 and repeated pronouncements of the Hon'ble Supreme Court. In such like state of affairs, the petitioner is neither an aggrieved party within the meaning of Article 44 of the Interim Constitution, 1974 nor has locus-standi to invoke the jurisdiction of this Court by-way of filing the instant writ petition because the record produced by the intervener through her counsel does not show the petitioner came before the Court with clean hands.
7. The upshot of the above discussion is that the instant writ petition in the present shape has become infructuous and is not maintainable, hence, the same is hereby dismissed in limine and consigned to record.