Acting Prime Minister moves the petition under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, seeking issuance of direction to respondents Nos. 1 and 2, to give effect to the finding of Special Assistant to the Prime Minister, made on February 8, 1993, and approval of summary note, on December 27, 1993.
2. The chequered history of the case as reflected in the petition, is that the petitioner was inducted in civil service of Azad Jammu and Kashmir, in the Information Department, in the year 1958. On September 13, 1975, he was duly promoted with effect from May 2, 1971. This order was passed on the basis of approval of the Public Service Commission. It was alleged that the petitioner was promoted as Deputy Director Information on October 28, 1986. On re--adjustment of the administration of the Department, the petitioner was posted as Information Officer in the light of order of the Government passed on March 7, 1978. Thereafter, some officers were inducted in service, in the Information Department, on which the seniority bf the petitioner was disturbed. He made several petitions to the competent authority. The review petition addressed by the petitioner to the Prime Minister of the time, it was alleged, was accepted on April 9, 1991, by endorsing the claim of the petitioner. This order of the Prime Minister was never implemented. To seek implementation of the order, the petitioner invoked jurisdiction of this Court through writ petition.
The petition was disposed of on June 1, 1992, in the circumstances as the matter was sub judice before the competent authority. The requisite relief was not granted as the petition was disposed of, as premature. On second round, in the light of the observations of the learned Judge of the High Court, the whole proposition was examined by the Special Assistant to the Prime Minister- On February 8, 1993, the finding was submitted to the Prime Minister for his approval. On account of absence of Prime Minister from the State, the Senior Minister assumed the office of Prime Minister and in his capacity as Acting Prime Minister, the summary note of April 9, 1991 and finding of the Special Assistant to the Prime Minister dated February 8, 1993, were submitted for the approval of the Prime Minister. The approval was awaited for considerable period. Since the finding of the Special Assistant was not given effect, the petition was moved in this Court, on May 12, 1993.
Meanwhile, during the pendency of the petition the Acting Prime Minister accorded approval to the finding of the Special Assistant, on December 27, 1993, but the same still awaits its implementation.
3. The petition was opposed on all counts by contesting respondents Nos.3 to 5. Respondents Nos. 1 and 2, admitted para. 4 of the writ petition, in their written statement as correct. Respondents Nos. 3 to 5 sought dismissal of the petition on various preliminary points, including the point of jurisdiction of this Court.
4. Kh. Abdus Samad, the learned counsel for the petitioner, argued that the merit of the petitioner has been accepted by the competent authority, but it was deliberately delaying the implementation of decision, out of malice. The attention of the Court was invited to various steps taken by the Government from time to time, to consider the merit of the petitioner and questioned delay in its final disposal. Mr. M. Aftab Alvi, the learned counsel for the opposite side, controverted the aforesaid points and argued that this proposition of law was raised previously before this Court and it was turned down for want of jurisdiction. Moreover, it was argued that the merit of the petitioner was not accepted by this Court. The learned counsel also argued that the petitioner wanted his promotion against the post of Deputy Director, w.e.f. The period when the post was not in existence on the cadre of the Department. According to him, the finding of Special Assistant was violative of law and unsustainable. It was also explained that respondents Nos. 3, 4 and 5, despite direction of the Prime Minister, were not afforded an opportunity of hearing by the Special Assistant to the Prime Minister.
5. Under section 44 of the Interim Constitution Act, this Court is empowered to examine, among others, such matters which fall within the purview of this section. Subsection (2)(a)(i) of section 44 of the Act, postulates that this Court may, on the application of any aggrieved party, issue direction to a person performing function in connection with the affairs of Azad Jammu and Kashmir or local authority to do that which he is required by law to do. Since the authorities are attributed negligence and malice to give effect to the direction of Prime Minister, which under law, subordinate authorities are bound to implement, it is permissible to issue direction to the competent authority to dispose of the matter expeditiously, to redress the grievance of the petitioner.
6. Under the Service Tribunal Act, the Service Tribunal has been empowered to deal with service matters falling within the purview of section 4 of the Act. Proviso under clause (b)(i), however, prescribed that no appeal shall lie to Tribunal against an order or decision of the departmental authority determining fitness or otherwise of the person to be appointed to or hold a particular post or to be promoted to a higher post or grade. Various categories of actions of Departmental Authority listed in clause (b)(i) are expressly excluded out of the purview and jurisdiction of the Service Tribunal. These matters are, therefore, determinable by this Court, in appropriate cases. The objection to jurisdiction is, therefore, not sustained.
7. The proposition relating to determination of seniority of petitioner and respondents Nos. 3, 4 and 5, is an intricate detailed proposition of facts and law. These matters have already been scrutinised at proper forum. Therefore, it is not deemed expedient to have another exercise into these questions. This may not be necessary. Be that as it may, the fact remains that at this stage, the grievance of the petitioner may be redressed by issuance of direction to respondents Nos. 1 and 2, to render expeditious disposal of the matter under law. Therefore, respondents Nos. 1 and 2 are hereby directed to dispose of the matter expeditiously, pertaining to seniority of the petitioner by giving effect to the approval of Acting Prime Minister, dated December 27, 1993 and Special Assistant dated February 8, 1993, in due course of law. The petition is disposed of accordingly. No order as to costs.