' BASHARAT AHMAD SHAIKH, J.---The facts giving rise to the appeal are that on 31st of May, 1990 the Government issued a notification which, translated in English, runs as follows:-- "(1) Sardar Muhammad Anwar Superintendent of Police, Mirpur is transferred and posted as Director Civil Defence, Muzaffarabad in his own pay and scale;
(2) Fahim Ahmad Khan A.S.P., Hattian, District. Muzaffarabad is transferred and posted, in his pay and scale, as Superintendent of Police, Mirpur.
(3) The notification will take effect immediately."
2. On 5-6-1990 Zaman All Shah and Taj Muhammad Durrani, P.D.S.Ps., as well as Abdul Qayyum Shah Gillani and Muhammad Azam Khan, D.S.Ps., filed a writ petition in the High Court challenging the aforesaid order so far as it relates to Fahim Ahmad Khan, A.S.P., seeking a writ of certiorari to the effect that the order appointing Fahim Ahmad Khan as Superintendent of Police Mirpur is without lawful authority, without jurisdiction and ineffective upon the rights of the petitioners. It was averred in the writ petition by the petitioners before the High Court (who are now respondents before us) that Zaman All Shah and Taj Muhammad Durrani were promoted as P.D.S.Ps. On 5-5-1976 and 26- 6-1976, respectively, while Abdul Qayyum Shah Gillani and Muhammad Azam Khan were promoted as D.S.Ps. On 29-1-1981. On the other hand Fahim Ahmad Khan joined the Police service as A.S.P. On 7-1-1986. The petitioners raised the grievance that Fahim Ahmad Khan had been promoted as Superintendent of Police in total violation of the Azad Jammu and Kashmir Police Service (Composition and Cadre) Rules, 1983 and by ignoring the seniority of all the four petitioners before the High Colin. They contended in the writ petition that in light of rule 4 of the Police Service Rules mentioned above an Assistant Superintendent of Police can be promoted to the next higher grade only after the completion of five years service, while Fahim Ahmad Khan had put in four years and four months of service and was, therefore, not entitled to be promoted or hold the post of Superintendent of Police. They alleged that they were fully qualified for promotion apart from being senior in service but had been ignored with mala fide intention. Another objection raised in the petition was that an Assistant Superintendent of Police could not be promoted as Superintendent of Police without the approval of the Selection Board but no such approval had been given in the case of Fahim Ahmad Khan.
3. In the written statement filed it was averred by the Additional Advocate-General that the order challenged in the writ petition was merely a transfer order and that since Fahim Ahmad Khan had been transferred and posted in his own pay and grade it was purely an ad hoc arrangement, it could neither be taken as a promotion or a permanent appointment. It was also contended that the order did not adversely affect the rights of the writ petitioners and they were not, therefore, aggrieved parties. The allegation of mala tides was also contested and it was pointed out that no reason or instance of any malice had been quoted in the writ petition.
4. A learned Single Judge in the High Court accepted the writ petition and set aside the impugned order. While doing so the learned Judge formed the view that the order was in fact an order of promotion and that Fahim Ahmad Khan could not be promoted as Superintendent of Police because he had not served as A.S.P. For five years as required by rule 4 mentioned above. The learned Judge also formed the view that even if it is treated as an ad hoc appointment it would still be illegal because only that person can be promoted on ad hoc basis who possesses the qualification for the post and had been approved by the Chairman of the appropriate Selection authority which had not been done in the case.
5. Azad Government of the State of Jammu and Kashmir and Fahim Ahmad Khan have filed appeal with the leave of the Court. The learned counsel for the appellants, Raja Muhammad Hanif Khan, raised, inter alia, the following grounds:-
(i) that the appellant No.2 Fahim Ahmad Khan was not allowed reasonable opportunity in the High Court to file written statement in the case and had been proceeded against ex parte without there being such an order;
(ii) that the High Court had no jurisdiction in the case because the subject-matter of the writ petition was within the jurisdiction of the Service Tribunal and, therefore, the order of the High Court violates Section 47 of the Azad Jammu and Kashmir Interim Constitution Act, which prohibits any Court from making any order in respect of any matter to which the jurisdiction of the Service.
Tribunal extends;
(iii) that the order was in fact an order of transfer and was in any case a stop gap arrangement and did not give any cause of action to the writ petitioners and, therefore, practically the writ has been issued without their being as aggrieved party; and
(iv) that there was no specific allegation of malice, but certain adverse remarks have been recorded without justification which need to be expunged.
6. Sardar Rafique Mahmood Khan has on the other hand defended the order of the High Court.
7. We may point out that the question of jurisdiction was not raised before the High Court and was raised for the first time in this Court in the petition for leave to appeal as well as in the concise statement. Leave was granted, inter alia, to consider whether the High Court had jurisdiction to set aside the impugned order in exercise of the writ jurisdiction or whether the Service Tribunal alone has the jurisdiction in the matter. It is no longer disputed that the question of jurisdiction can be raised in this Court for the first time.
8. Under section 4 of the Azad Jammu and Kashmir Service Tribunal Act the Service Tribunal has been vested with exclusive jurisdiction to hear appeals against final orders in respect of terms and conditions of service. Terms and conditions of civil servants are large in number and so scattered that it is not easy to summarise them but the plain fact is that some of them can be easily found in the Civil Servants Act in Chapter II. The title of Chapter II is "Terms and conditions of service of civil servants". Section 3 which is the first section in the Chapter lays down as follows:- "The terms and conditions of service of a civil servant shall be as provided in this Act and the rules."
9. One of the sections in Chapter II is section 8 which deals with promotion. Another section namely section 9 deals with posting and transfers while section 11 deals with reversion to lower grade or service. Since these sections are part of Chapter II mentioned above these three matters are terms and conditions of civil servants. A perusal of the judgment under appeal shows that the High Court has dealt with these three matters. We may first note that in pare 5 the High Court observed as follows:- "In case it is construed that the impugned order does not tantamount to promotion, the petitioners, obviously, would have no grievance and would be incompetent to seek their redress by invoking special jurisdiction of this Court. Conversely, if the order is construed as a promotion feigned as posting, the petitioners undoubtedly, are aggrieved party, as such competent to challenge the validity and propriety of the impugned order."
10. Then in para 11 the High Court recorded the following findings:- "It is accepted by the learned Additional Advocate-General that the post of S.P. Is a permanent senior post. It is a selection post and it is to be filled in according to the method postulated under rule 4(2) (a), (b), (c) & (d) of the P.S. Rules. Respondent No.2, who is presently an A.S.P., ordinarily cannot be transferred as S.P., unless he is promoted and posted as such. This is so, as presently he is functioning as A.S.P. And the post of A.S.P. Is admittedly a junior post. On account of disparity between the two posts and the rank of the officers, it is undenied that the respondent, who is an A.S.P., cannot be transferred, in the ordinary course of events, and posted against a senior post of higher cadre and a selection post. It is correct that vide the impugned order, the respondent (No.2) is placed in the same grade and he has to draw the same salary, but it is undenied that by his posting as S.P., he would avail all the benefits and facilities which are admissible to the post of S.P.
And would exercise the powers which accompany to the post of S.P. Thus, by virtue of availing the other benefits and facilities and by exercising the powers of a senior post, the respondent is obviously placed in the position of his promotion. Thus the impugned order which purports to be a transfer order, is in fact an order of indirect promotion of respondent No.2."
11. It is apparent from the portions of the judgment as reproduced above that the High Court reached a definite conclusion that the order impugned was an order of promotion. We have already seen that promotion is one of the terms and conditions of service and is in the exclusive jurisdiction of the Service Tribunal. This leads us to the conclusion that the High Court has exercised jurisdiction which is vested in the Service Tribunal which means that there is complete ouster of jurisdiction of the High Court in this matter. If it was a promotion order, as held by. The High Court, the vacation of the order has resulted in the reversion of Fahim Ahmad Khan which again, as already seen, is one of the terms and conditions of service as is evident from section 11. We have no dianbt that. High Court was not competent to order the reversion of Fahim Ahrnad Khan, appellant before us.
12. The case of the Government before the High Court was that the order impugned before the High Court was only a transfer order. The High Court did not accept the plea and held it to be a promotion order. In our view even if the order was one of transfer the High Court would still have no jurisdiction in the matter because posting and transfer is also one of the terms and conditions as laid down in section 9 of the Civil Servants Act.
13. Before closing the judgment we have to dispose of the prayer made by the learned counsel for the appellants that a portion of the judgment of the High Court is uncalled for and may be expunged. The portion to which objection has been raised runs as follows:- "It is relevant to state here that the impugned order is one of the series of post election orders issued by the outgoing Government. It may be called the last kick of the horse leaving the stable of power."
14. Raja Muhammad Hanif Khan, the learned counsel for the appellant, in support of his contention submitted that no specific instance of malice had been made in the writ petition and in any case there was no material available on the record which could lead to the inferences incorporated in the portion objected to. We have looked into the writ petition and find that the allegation regarding mala fides was made in two places. In ground (b) in para 6 of the writ petition it was alleged that the petitioners had been ignored by the Government with mala fide intention. This obviously is a general allegation lacking in material particular and, in our opinion, such could not form basis of the extracted observation. The other allegation is contained in clause (d). In ground (d) the allegation was to the following effect:- "The petitioner's case for promotion and selection was referred to the Selection Board in the month of January 1990, but the same has been kept pending with the mala fide intention to give undue benefits to the respondent No.2 who has been posted as S.P. Without keeping in view the relevant Rule and in disregard of Selection method."
15. It is clear from the above that the delay which was caused in the finalisation of the selection was attributable to the Selection Board and not to the Government. In fact it is stated in the allegation reproduced above that the case for promotion had been referred to the Selection Board. It clearly shows that job which had to be done by the Government had been performed well in time. In this view of the matter no blame could lie on the Government. Our view, therefore, is that the observations made by the High Court were not well founded. The remarks are disparaging in nature and amount to condemnation of the person who passed the order set aside by the High Court. However, we do not feel it necessary to formally expunge these remarks for two reasons.
Firstly, because although the grievance was expressed in the memo of appeal regarding the remarks under reference but no formal prayer for expunction was made; and secondly because the judgment is being vacated as a whole.
16. We find that there is substance in the other argument of the learned counsel for the appellant that no ex parte order was passed against Fahim Ahmad Khan but he was not afforded an opportunity to file a written statement. However, since the order of the High Court as a whole is being set aside there is no need to record a separate order in this respect.
As an upshot of the foregoing, the appeal is accepted and order of the IF High Court is set aside.