1. BASHARAT AHMAD SHAIKH, J-- -This appeal, by leave of the Court, has been filed by the Azad Government of the State of Jammu and Kashmir as well as the Secretary and Chief Conservator of the Forest Department for vacation of an order by which the High Court admitted for regular hearing the writ petition filed by the present respondents and also issued an interim order that the Azad Jammu and Kashmir Forest Department Service Rules, 1984 shall not be modified till the disposal of the petition.
2. The short point involved in the case is whether the subject-matter of the writ petition filed by the respondents pertains ho the terms and conditions of service of civil servants and therefore the High Court has overstepped its jurisdiction by admitting the writ petition to regular hearing in contravention of section 47 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 which ousts the jurisdiction of all the Courts including the High Court in matters relating to the terms and conditions of persons who are or have been in the service of Azad Jammu and Kashmir.
3. In the writ petition the respondents submitted the following facts. They are permanent employees of the Forest Department and were 'substantively holding the posts of Forest Rangers in B-16. It was stated that according to the Forest Department Service Rules, 1984 the posts of Forest Rangers-can be filled partly by initial recruitment and partly by promotion. In case of initial recruitment the basic qualification was F.Sc. And the candidate are selected through Public Service Commissioner and are required thereafter to undergo two years training at Pakistan Forest Institute, Peshawar.' After successful completion of training they are awarded the degree of B.Sc. (Forestry) and are then appointed as Forest Rangers in B-16. The posts of Forest Rangers, which are to be filled up by promotion are filled from the Deputy Rangers of B-9 with 12 years service. Range Officers have common seniority but the promotee Forest Rangers cannot, under the aforesaid Rules, be promoted as Assistant Conservators of Forests in B-17. According to the Rules Assistant Conservators of Forests are appointed through promotion from directly recruited Range Officers or -by initial recruitment, the quota being 50 per cent for each category. The Government has now decided to reduce the 50 per cent quota reserved for directly appointed Range Officers to make room for promotee Forest Rangers and in this respect a Government order in the shape of a notification was issued on 1st of September 1993. The rules have now to be amended to implement the Government order. For the reasons incorporated in the writ petition it was prayed that the aforementioned notification may be declared as without lawful authority and without legal effect. It was also prayed, inter alia, that the writ of prohibition may be issued against the Government restraining them from amending the Azad Jammu and Kashmir Forest Department Service Rules, 1984 in order to implement the impugned notification.
4. The order passed by the, High Court shows that the following grounds were urged before it: ---
(i) that the rules which govern the service of the petitioners have been framed under the provisions of section 23 of the Civil Servants Act, 1976. The scheme of law does not provide for initial recruitment and promotion on the basis of quota system. Therefore the scheme providing for quota was violative of the basic Act:
(ii) that the quota system has not been recognised by the Azad Jammu and Kashmir Interim Constitution Act or by any law which applies to the services of the petitioners, as such the scheme of quota was void ab initio; .
(iii) that the civil services of Azad Jammu and Kashmir were governed by the law providing for terms and conditions which were at par with the terms and conditions applicable to civil servants in Punjab. Thus, by making provision for quota for initial recruitment and promotion in the case of the petitioners was violative of the rule of parity mentioned above;
(iv) that the action of the respondents was discriminatory, as such it was violative of Fundamental Rights enunciated in the Azad Jammu and Kashmir Interim Constitution Act, 1974; and
(v) that the action of the respondents was mala fide."
5. After noting the points the learned Judge in the High Court ordered as follows:--- "The points listed above are of vital importance and of Constitutional nature. As such, the petition is admitted for regular hearing."
6. As is obvious the High Court did not advert to the question whether the writ petition was maintainable or not, An objection about the maintainability of the writ petition was not raised before the High Court because the opposite party was not present at the admission stage but the High Court should have itself looked into the question whether the writ petition was hit by the bar contained in section 47 mentioned above. The bar contained in that section is so complete that a proceeding cannot even be entertained in respect of any matter to which the jurisdiction of the Service Tribunal extends. In such a situation it is Constitutional duty of the High Court to advert to this question before entertaining any proceeding relating to service matters. Before admitting the writ petition the High Court therefore should have adverted to the question and that Court could proceed to admit the writ petition only if it formed the prima facie view that it was not hit by the ouster clause mentioned above. This fact assumes added importance due to the fact that in the recent past a number of cases have been decided by this Court to emphasis this aspect. In some of the cases this Court has been constrained to set aside admission orders and interim injunctions issued by the High Court.
7. Raja Muhammad Hanif Khan, the learned counsel for the appellants, vehemently contended that under section 8 of the Azad Jammu and Kashmir Civil Servants Act promotion is one of the terms and conditions of service. In the writ petition the respondents raised the grievance that 50 per cent quota of the directly recruited Forest Rangers holding B.Sc. (Forestry) Degree was being reduced and was being reserved for promotion of promotee Forest Rangers and also alleged that service structure of the department was being destroyed. The learned counsel submitted that these contentions meant nothing except raising the grievance that the terms and conditions of directly recruited Forest Rangers were being adversely affected thus diminishing their prospects for promotion. It was therefore, contended that the writ petition clearly related to the terms and conditions of service and the bar of jurisdiction was attracted with full force. It was further contended that even the vires of an enactment or, a rule could be challenged before the Service Tribunal. Raja Muhammad Hanif Khan cited Azad Jammu and Kashmir Government v, Zaman Ali Shah PLD 1991 SC (AJ&K) 57; The Accountant-General v. Zaman Hussain Khan 1993 SCR 259; Iqan Ahmed Khurrum v. Government o1 Pakistan PLD 1979 Kar. 610; Iqan Ahmed Khurrum v. Government of Pakistan PLD 1980 SC 153 and Ghiasul Haq v. Azad Government of the State of Jammu and Kashmir PLD 1980 SC (AJ&K) 5.
8. The learned counsel for the respondents, Kh. Shahad Ahmad submitted that the jurisdiction of the Service Tribunal does not extend to the issuance of prohibition or a direction to the Government as under section 4 of the Service Tribunal an appeal before the Service Tribunal was only maintainable against a final order. The learned counsel drew our attention to the prayer clause of the writ petition to show that, apart from seeking declaration that notification dated 1st of September, 1993 be declared a without lawful authority, there were two other reliefs which were prayed for. One was the prayer that a writ of prohibition may be issued against respondents restraining them from amending the Forest Department Service Rules, 1984 and reserving the quota for unqualified Forest Rangers for promotion to the Assistant Conservator Forests/D.C.F. The other prayer, in the alternative, was that the respondents may be directed to amend the Rules according to the principle of parity with Punjab. Elaborating his point Kh. Shahad Ahmad contended that these two reliefs could not be granted by the Service Tribunal and, therefore, the writ petition was maintainable. He relied on Sharaf Faridi v. The Federation of Islamic Republic of Pakistan PLD 1989 Kar. 404; H.L. Trehan v. Union of India AIR 1989 SC 568 and Miss Benazir Bhutto v.
9. Federation of Pakistan PLD 1988 SC 416.
10. So far as notification of 1st September, 1993 is concerned we find that it is a final order within the meaning of section 4 of the Service Tribunal Act and-is appealable before the Service Tribunal. It has reduced by 50 per cent the quota reserved from promotion from amongst the directly recruited Forest Rangers holding B.Sc. (Forestry) Degree and the quota thus reduced has been reserved for non-F.Sc. Forest Rangers. Thus the order relates to the terms and conditions of service and may reduce the service prospects of the directly recruited Forest Rangers. This part of the writ petition admittedly cannot be entertained by the High Court due to the bar of section 47 mentioned above. So far as the other two reliefs are concerned they are only corollary of the notification mentioned above. In presence of this notification an amendment has to be carried out in the Forest Department Service Rules, 1984 to give effect to the contents of the notification. There.
11. Can be no legal bar in amending the Rules as long as the Government order stands. In other words the amendment in the Rules would be a consequence of the Government order. If the High Court does not have the power to quash the Government order it cannot issue any writ of prohibition restraining the Government from amending the Rules. The two 'are inextricably linked up. The challenge contained in the writ petition to the Government order is admittedly beyond the jurisdiction of the High Court and the other prayer as well as the alternate prayer do not have any independent existence. Apart from that it is celebrated principle of law that what is not allowed to be done directly cannot be done indirectly.
12. In Miss Benazir Bhutto's case the Supreme Court of Pakistan held that vires of a law can be challenged if its provisions are ex facie discriminatory in which case actual proof of discriminatory treatment is not required to be shown. In H.L. Trehan's case the. Supreme Court of India dismissed an appeal filed to challenge a judgment of the Delhi High Court whereby that Court had quashed a circular issued by the Board of Directors of Caltex Oil Refinery Ltd., whereby the terms and conditions of service of some of the employees had been adversely affected. Both these cases relate to the merits of case and will be helpful to the respondents when merits are examined.
13. However, in the present appeal what we are dealing with is the question as to which is the Court, which has to examine the merits of the contentions raised by the respondent.
14. In Sharaf Faridi's case the Karachi High Court held that High Court could issue a direction to the Federal and Provincial Governments to initiate legislative measures for bringing the existing laws in conformity with Articles 175 and 203 of the Constitution of Pakistan relating to the judiciary. This judgment relates to implementation of the provisions of the Constitution of Pakistan in which directions were issued that the law should be brought in conformity with those Constitutional provisions. No question relating to the terms and conditions of a civil servant was involved.
15. In light of the conclusions reached above we hold that the writ petition I filed in the High Court was not maintainable and has been admitted for regular hearing in contravention of section 47 of the Azad Jammu and Kashmir Interim Constitution Act. The same is the position of the interim order passed by the High Court. We, therefore, by accepting the appeal set aside the order passed by the High Court on 26th October, 1993 and order that the writ petition titled 'Muhammad Hameed Mughal and others v. Azad Government and others' shall stand dismissed in limine. The costs shall follow the event.