1. ' BASHARAT AHMAD SHAIKH, J.---This is an appeal, with leave of this Court, filed by the Secretary and the Additional Secretary of the Works Department of the Government who pray that certain portions of the judgment of the High Court recorded on 18th April, 1992 may be expunged. The judgment was passed in a writ petition titled "Muhammad Naseem and others v. Azad Government of J & K and others". The writ petition has been dismissed by the High Court and it is one of the main grounds on which the appeal is based that having decided to dismiss the petition the learned Judge in the High Court could not have justifiably recorded the observations which are sought to be expunged.
2. ' The circumstances in which the writ petition was filed may first be noted. In the Public Works Department twenty per cent. Posts of Assistant Engineers in basic pay scale 17 are reserved under the departmental rules for promotion from amongst Sub-Engineers who are in pay scale 16. Rest of the posts (80 per cent.) are filled up by direct appointment of graduate engineeRs, In 1989 two posts of Assistant Engineers fell vacant in the twenty per cent. Quota to be filled up by promotion from Sub-Engineers cadre. Muhammad Naseem Khan and Abdul Rashid Qureshi, respondents herein, were Sub-Engineers at that time. They were, at different dates, posted in their own pay and scale as Assistant EngineeRs, It is obvious that they were not formally promoted but they kept on working for a number of years as Assistant Engineer which posts carry higher grade and status. On 28th of Novmber, 1991 the Government issued an order by which both the aforementioned civil servants were "sent back" to their substantive posts of Sub-Engineers on the ground thaty they had been posted as Assistant Engineers head of their seniority. In their places Muhammad Bashir and Abid Hussain Jafri were posted as Assistant Engineers in their own pay and scale. On 14th of December, 1991, Muhammad Naseem Khan and Abdul Rashid Qureshi filed a writ petition in the High Court to challenge the aforementioned order issued on 28th of Novmber, 1991. Apart from other contentions they raised a point that a writ petition filed by Muhammad Bashir and Abid Hussain Jafri in which Abdul Rashid Qureshi was impleaded as a respondent had been dismissed by the High Court on 15th of September, 1991 by holding that Abdul Rashid Qureshi and another person not before the Court (Muhammad Arif Butt) had been unconditionally promoted (as Assistant Engineers) against the quota reserved for Diploma EngineeRs, The High Court, as stated earlier, dismissed the writ petition. It seems necessary to reproduce para. 12 of the judgment which contains the reasons of dismissal: "12. Without expressing myself on the merits of the case, legality of the order of petitioners' reversion and respondents 3 and 4's promotion, inter se seniority of parties, interpretation and extent of application of Engineering Service Rules and competence of respondents in passing the impugned order specially in view of the judgments of the High Court and Supreme Court wherein claim of the respondents was rejected; the fact still remains that the matter being related to the terms and conditions of civil servants, interference by this Court, may amount to overstepping its extraordinary jurisdiction, especially when the matter is being dealt with by the competent departmental authority and the Minister concerned, who is 'responsible for policy matters and for the conduct of business of his Department' in the light of Rules 4 and 6 of the Rules of Business, has already recommended the cancellation of order of the petitioners' reversion to the Prime Minister vide his note reproduced hereinabove. A comprehensive note depicting the legal position hardly needs any addition. Let the Prime Minister, who is competent authority in the case in hand, pass a final order first, on the note of Minister concerned, with respect to the matter in controversy, of course expeditiously. Aggrieved party can approach the proper forum for redress of his grievance, after the disposal of the matter by the competent departmental authority. The writ petition is dismissed in the light of above observations without any order as to costs."
3. ' The portions of the judgment which are sought to be expunged in this appeal are para. 9 in full and the following portion of para. 8:- "First, the Additional Secretary and then the Secretary PWD, on the further order of the Court submitted the clarifications but in an evasive and loathsome manner. The clarifications were submitted on March 16, 26, April 1, 1992 and the last on April 1, 1992. The latter relevant for the purpose are reproduced as: ' Para. 9 runs as follows:- "It is regretfully remarked that Public Works Secretariat staff has substituted its own judgments as against the judgments of the High Court and the Supreme Court. Judgments of the Courts have to be followed and observed in the manner those are delivered. The interpretation of law, no doubt, is the duty of the bureaucracy as well, but when a provision of law or any other particular situation is interpreted or dealt with by the Courts, it overrides intepretations and opinions of all the authorities, subject to the dictum of final appellate Court. The judgments of the Courts have to be carried into effect and observed as they are, notwithstanding the personal opinions of the authorities vested with the implementation of the order. The Works Secretariat in the instant case, has, by its whimsical interpretation of judgments eroded the authority of Courts. The transfer application levelling contemptuous allegations and evasive response to the orders of the Court by respondent No,2, are such of his commissions and omissions, which are not becoming of a civil servant at the apex of administration."
4. ' We have heard the learned counsel for the parties at some length. It was vehemently contended by Sardar Rafique Mahmood Khan, the learned counsel for the appellants, that the High Court was not right in observing that the Secretary and the Additional Secretary of Public Works Department substituted their own judgment as against the judgments of the Supreme Court and the High Court. He referred to notes written by the appellants and also the previous judgments, mentioned above to contend that the observations were unfounded. It was urged by him that appellants could not even think of doing such a thing. On the other hand Raja Muhammad Hanif Khan, Advocate took pains to explain that the observations were well-founded. He relied on a reported judgment of this Court Inam-ur-Rahim Shah v. The State (PLD 1989 SC (AJ&K) 32) in which this Court expressed the view that Courts should be allowed to perform their functions freely and fearlessly and without undue interference by the superior Courts. It was also observed that it was desirable that a judgment should remain in the shape in which it was originally published unless there are good reasons for deleting irrelevant or unnecessary passages.
5. ' As is clear from the facts of the case, it is a service matter, and the dispute is about terms and conditions of service. As rightly observed by the learned Judge in the High Court, the matter cannot be adjudicated upon in the exercise of writ jurisdiction. It falls within the jurisdiction of the Service Tribunal and the jurisdiction of the High Court stands totally ousted by section 47 of the Azad Jammu and Kashmir Interim Constitution Act, 1974. In the paragraph under reference the learned Judge observed that the matter was still pending with the competent departmental authority, therefore, he (the learned Judge) thought it fit not to go into the merits of the respective claims of the parties at that stage. However, by observing that interpretation adopted by the Secretary and Additional Secretary of Public Works Department, the appellants before us, runs counter to the judgments of this Court and the High Court in the previous proceedings a judgment has been passed that the appellants' stand is legally untenable on merits. When the High Court did not have the jurisdiction to decide the case and even otherwise it was found that the writ petition was premature then there was no justification in law to discuss the merits of the case. The reasons recorded by the Courts of law form the basis of a decree, order, declaration or sentence which is passed by a Court. If no decree, order declaration or sentence has to be passed there should be no occasion to record reasons or conclusions. It is a cardinal principle of administration of justice that Courts do not enter into an exercise in futility nor in an exercise which is purely academic in nature.
6. While resolving disputes which are brought before it a Court determines the rights and liabilities of parties before it and dispenses justice in a concrete shape. Thus we reach the conclusion that the observations made in para. 9 should not have been recorded by the High Court irrespective of the fact whether these observations are factually or legally correct or not. It follows that even this Court should not decide the issue whether the position adopted by the Secretary and the Additional Secretary, the appellants before us, is correct or not because if we do so and come to the conclusions that the position taken by the appellants runs counter to the previous judgments of the High Court and this Court it would mean that in spite of the accepted legal position that in a proceeding arising out of a writ petition the terms and conditions of civil servant cannot be adjudicated upon we would be precisely entering into that exercise. By doing so we would also be commenting upon a matter which is still pending with the competent departmental authority. In this view of the matter para. 9 of the judgment of the High Court has to be expunged from the judgment.The appellants seek expungement of another passage of the judgment in para.
8. Keeping in view the overall facts of the case we are of the opinion that the works " but in an evasive and loathsome manner" should not have been recorded in the judgment under appeal.
7. ' We accept the appeal and order that following portions of the judgment of the High Court in Writ Petition No,105/91 titled "Muhammad Nasim Khan v. Azad Government of J&K and others" shall be expunged:--
(i) The words " but in an evasive and loathsome manner" occurring in para 8; and
(ii) Para. 9 as a whole.