An order issued by the Section Officer, Health Secretariat, on 29th of February, 1992, with the approval of Minister, Health, is challenged through this writ petition. The brief facts are as follows:-- That the Director, Health Services, vide his Order No.5088--5103/DHS/92, dated 26th February, 1992, ordered the promotion of the petitioner as District Food Inspector, on the basis of seniority-cum- fitness and on the recommendation of Departmental Promotion Committee made on 23-2-1992.
The petitioner, according to him, took over the charge of the post on 27-2-1992. The Minister, Health Services first ordered the appointment of respondent No.6 against the post of District Food Inspector on 24-2-1992 and later reaffirmed the order on 29-2-1992 besides cancelling the order of promotion of the petitioner issued by the Director, Health Services on 26-2-1992.
2. The petitioner has challenged the above order, i.e. The order dated 29-2-1992, on various grounds, some of which are as under:-- (a)that the order is politically motivated; (b)that respondent No.6 does not possess the required qualification for appointment to the post of District Food Inspector; (c)that the order of the petitioner's promotion was made by the competent authority, i.e. The Departmental Selection Committee, while the Minister, who is no authority in the matter, has ordered otherwise.
3. The respondents, through their written statement, have objected to the jurisdiction of the Court on the ground that under section 47 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, the matter relates to the terms and conditions of the civil service, hence it is excluded from the purview of jurisdiction of the High Court. Moreover, the petitioner having availed the departmental remedy of appeal before the Prime Minister, the petition is liable to be dismissed. It is also alleged that the petitioner's promotion was against the relevant rules and the Minister was competent to set the irregularity and illegality right.
4. I have heard the learned counsel for the parties and have gone through the record.
5. The learned counsel for the petitioner has, inter alia, argued that the petitioner, who was senior most in the department, was promoted and appointed against the post of District Food Inspector; that the Minister has no authority, under the rules, to set aside the order of promotion of the petitioner; that respondent No.6 was not qualified to be appointed or promoted against the post of District Food Inspector in view of the rules 41 and 43 of the Azad Jammu and Kashmir Health Department Service Rules, 1984 as, according to the learned counsel, the respondent was in Grade- 8 at the time and that the Departmental Promotion Committee had not recommended the name of the respondent. Controverting the arguments of the learned counsel for the petitioner, the learned counsel for the respondent, Ch. Muhammad Ibrahim Zia has, inter alia, contended that the petitioner is availing the departmental remedy by filing an appeal before the Prime Minister, hence, according to the learned counsel, the writ petition is not competent; that the matter relates to the terms and conditions of service of the civil servant, hence the jurisdiction of the Court, in view of section 47 of the Constitution, stands ousted; that the petitioner has not come in the Court with clean hands and has concealed the fact that his earlier writ petition was dismissed by the High Court on 7-3-1992 and that the petitioner has not sought the relief of quo warranto in his petition.
6. The learned counsel for the Health Department has frankly conceded at the Bar that respondent No.6 is not qualified for promotion to the post of District Food Inspector in view of the Health Department's Rules.
7. Before disposing of the objections raised by the learned counsel for the respondent with respect to jurisdiction of the Court and maintainability of the writ petition, I deem it proper to place on record the relevant rules relating to the promotion and posting against the post of District Food Inspector, Health Department, and the authority competent to make the order. At Serial No.41 of the Schedule annexed to the Azad Jammu and Kashmir Health Department Service Rules, 1984, the method of appointment by promotion against the post of District Food Inspector is prescribed as follows:--
(i) By promotion on the basis of seniority-cum-fitness from amongst officials holding the post of Assistant Rural Health Officer in B-14 in the department with 2 years as such:
(ii) By promotion on the basis of seniority-cum-fitness from amongst the selection grade Head Technician in B-11 in the Department with 5 years' service as such, in case candidates in (i) above are not available. Court---Nature of the writ or relief sought did not control jurisdiction of the Court but the Court would issue appropriate writ or relief on basis of pleadings and the case made out of the pleadings of parties, notwithstanding, specific mention of a particular nature of writ or relief.
8. The authority competent to make appointment against the post is Director, Health Services and the appointment is to be made by promotion on the basis of qualifications prescribed in the above-quoted rule. The respondent, who is appointed against the post by the Minister, was dispenser in B-6 while 32 dispensers senior in rank to the respondent are on the list. The Director, Health Services has also opposed the appointment of the respondent against the post and supported the appointment of the petitioner vide his Letter No.12244-46/DHS/92, dated 25-5-1992 addressed to the Additional Secretary, Health.
9. The perusal of the record, reveals, and the same is admitted at the Bar as well, that respondent No.6 does not fall in any of the categories mentioned in the rule quoted above; neither has his appointment been made by the Director, Health Services nor does the Minister, who. Has appointed respondent No.6 against the post, figure in the rules quoted above. The appointment of respondent No.6, thus, is without lawful authority, on all the counts.
10. As far as the question of jurisdiction is concerned, a civil servant who t feels aggrieved by any order passed by departmental authority, affecting his terms and conditions of service, has no option but to resort to the departmental remedy of review, appeal, revision etc. As provided in the service rules. But where the appointment of another person is challenged by the aggrieved civil servant as being without lawful authority and the same is borne out from the record, the High Court is not devoid of jurisdiction to grant appropriate relief to the extent it falls in its jurisdiction as made out from the pleadings of the parties. There is no doubt that the order impugned before the Court affects the terms and conditions of the petitioner's service as well and if the petitioner's grievance before the Court had been to redress that grievance alone, Court would have stopped its hands in view of 1993 PLC (C.S.) 268 and left the petitioner to seek remedy for himself from the proper forum, but the fact remains that the respondent No.6's authority to hold the post is also challenged, who has been appointed against a post for which he does not qualify nor has his appointment been made by the competent authority. This in itself is a distinct and separable cause. Thus, without dilating or commenting upon the adverse effect of the impugned order upon the petitioner, the authority of respondent No.6 to hold the post can be determined by the Court. A public office can be ordered to be vacated on the application of any person if it is proved before the Court that it was being illegally occupied or usurped, notwithstanding its positive or negative results for or against the petitioner. I may refer here an illuminative judgment of the Supreme Court of Azad Jammu and Kashmir, reported in 1993 PLC (C.S.) 297 which had almost identical facts, with the difference that writ of quo warranto was specifically incorporated in the relief clause of the petition decided by the Supreme Court in appeal, while the same is not specifically mentioned in the petition in hand.
The following para of the Supreme Court judgment is worthwhile to be reproduced:-- "From the foregoing extract it is clear that the writ petition which had been filed by the forty Forest Officers, who are respondents before us, was one of quo warranto and did not relate to any violation of the terms and conditions of the petitioners. While deciding this point the learned Judge in the High Court observed that under section 4 of the Service Tribunals Act an appeal can be filed by a civil servant against the final order in respect of any of the terms and conditions of his service and that the petitioners in the present case did not challenge the order under reference on the ground that their terms and conditions of service had been violated by it. We find force in this observation. The scope of an appeal before the Service Tribunal is vastly distinct and different from the application for a writ of quo warranto envisaged by section 44 of the Interim Constitution Act. In an appeal under section 4 of the Service Tribunals Act if a civil servant is aggrieved by a final order passed by a departmental authority he can file an appeal before the Service Tribunal, but the overriding condition is that it should relate to any of the terms and conditions of that civil servant. It is implicit in an appeal before the Service Tribunal that the appellant has to seek a relief for himself.
On the other hand a writ of quo warranto can be filed by any person without being aggrieved of any order. A writ of quo warranto is sought to get a public office vacated if it can be proved before the High Court that it was being illegally occupied or usurped. During the elaborate arguments on this point Mr. Muhammad Akram Khan did not contend that the enactment of section 4 of the Service Tribunals Act has the effect of abrogating the powers of the High Court to issue a writ of quo warranto as long as section 4 is in force. We may observe that section 47 of the Interim Constitution Act does have the effect that as long as section 4 is in existence the powers under section 44 cannot be exercised by the High Court but this is subject to the conditions that matter must relate to terms and conditions of the service of a civil servant who is an appellant before the Service Tribunal and seeks annulment of an order adversely affecting his service rights. The host of authorities cited by Mr. Muhammad Akram Khan in support of his contention lay down the same proposition but do not lay down that the power of issuing a writ of quo warranto is not available to the High Court if the appointment of a civil servant is challenged:"
11. As far the objection that petitioner has filed the departmental appeal before the Prime Minister, it would suffice to say that the Court is not to decide the question of petitioner's eligibility to hold the post or the legality of the impugned order affecting the terms and conditions of the petitioner's service. Kick back benefit or loss is not the concern of Court once a case of interference is made out for quo warranto. The other objection is also devoid of force as the earlier petition of the petitioner was for a writ of prohibition filed before the impugned order appointing respondent No.6.
12. As far as the nature of prerogative writs is concerned, the same have not been specifically mentioned in section 44 of the Interim Constitution Act, 1974. But the Court, while granting the relief, as a matter of practice, grant the relief and mention the nature of the writ, which is issued by them on the basis of case made out before the Court. Thus, it is not the nature of writ or relief sought which controls the jurisdiction of the Court, but the Court is to issue an appropriate writ and relief on the basis of the pleadings and the case made out of the pleadings of the parties, notwithstanding the specific mention of a particular nature of writ or relief. I am fortified in holding this view by:-- (i)PLD 1966 (W.P.) Lahore 187. It was observed:-- "This paragraph when read in the context of other averments in the petition leaves no manner of doubt as to the nature of relief sought by the petitioner. The relief claimed is clearly referable to clause (2)(a)(ii) of Article 98 of the Constitution. Article 98 of the Constitution omits all references to ancient prerogative writs issued by the Court of Queen's Bench in England, namely, writs of habeas corpus, mandamus, prohibition, quo warranto and certiorari. Therefore, for the purpose of any relief claimable under Article 98 of the Constitution, it is scarcely necessary to ask relief with reference to any specified writ known to common law. Learned counsel for the contending respondent did not contend that upon the facts alleged in the writ petition no relief under Article 98 was possible. His contention simply was that relief was not claimed in appropriate terms. As pointed out already whether any relief is claimed or not must be judged from a reading of the petition as a whole."
(ii) PLD 1964 SC 673. In this case, it was observed:-- "I find no difficulty in granting relief because of any defect in the form of the prayer in the petition.
The prayer as framed in the petition is sufficiently wide and, in any event, the Court is not powerless to grant the relief that the justice of the cause requires to the same extent as if it had been asked for."
(iii) 1987 CLC 213. It was observed in this case:-- "It is accordingly contended by the learned counsel that in these circumstances, the order of respondent No.2 passed in his case cannot be declared as without lawful authority. This contention of the learned counsel has no substance. As many as 3 specific grounds are raised in the memo of petition challenging the validity of the order of respondent No.2. Respondent No.2 is a party in this petition and in the counter-affidavit filed on behalf of respondent no such grievance was made.
There is also alternate prayer in the petition for grant of such other relief against the respondents as may be found necessary and expedient in the circumstances of the case. In these circumstances, mere omission on the part of the petitioner to make a specific prayer in the prayer clause could not disentitle him to the relief if otherwise he is entitled to it on the facts and circumstances of the case:'
13. The petitioner has sought the following remedy from the Court:-- "It is, therefore, prayed that the order of the non-petitioner No.2, No.1160-64, dated 29-2-1992, may kindly be declared as void ab initio, being without lawful authority, mala fide and in excess of jurisdiction.
Any other relief to which the petitioner may be found entitled, may also kindly be granted."
The prayer clause of the petition when read in the context of the averments of the petition and viewed in the perspective of the above-referred I authorities, suggests the relief referable to section 44(2)(b)(ii) of the Azad Jammu and Kashmir Interim Constitution Act, 1974.
It is, therefore, ordered that the order passed by the Minister, Health on 29-2-1992, appointing respondent No.6 as District Food Inspector, is without lawful authority, and respondent No.6 is restrained from performing functions as such. The petition is accepted with costs.