1. ' MUHAMMAD YUNUS SURAKHVI, J.---This appeal by way of leave has been directed against the judgment of the High Court dated 23-1-1994 whereby the writ petition filed by Sarwar Hussain, respondent No, 1 was accepted.
2. ' The facts of the case precisely are that Sarwar Hussain respondent filed a writ petition in the High Court challenging the order of the then Health Minister dated 29-2-1992 whereby the appellant, herein, was promoted and appointed as Food Inspector on officiating basis in Health Department in BPS-8 which he was enjoying as Dispenser. The case of the respondent was that the Health Minister was not conipetent to promote the appellant as Food Inspector because he was not approved by the relevant Selection Board; rather the respondent was approved for promotion as such by the Selection Board. It was further alleged that only the Director, Health Department was competent to make the appointment in question on the recommendation of the Selection Board.
3. An objection was raised before the High Court that it had no jurisdiction in the matter in view of section 47 of the Azad Jammu and Kashmir Interim Constitution Act, 1074. However, the High Court overlooked the objection and opined that this was a case in which terms and conditions of service of the respondent were not likely to be adversely affected; rather it was a case for issuance of a writ of quo warranto and the relief could be given to the respondent. Consequently the same was granted by accepting the writ petition.
4. ' We have heard the arguments on behalf of the learned counsel for the parties and perused the record made Pvailable with care.
5. It has been vehemently contended by Ch. Muhammad Ibrahim Zia, the learned counsel for the appellant, that this Court has held in various cases that in service matters the writ is not an appropriate remedy and the aggrieved person can seek the redressal of his grievance by way of representation, review, appeal etc. From the Departmental Authorities and thereafter to the Service Tribunal. The learned counsel has cited following authorities in support of his contention:--
(1) Accountant-General v. Zaman Hussain Khan (1993' SCR 259),
(2) Azad Government v. Syed Zaman All Shah PLD 1991 SC (AJ&K) 5),
(3) Azad Government v. Sardar Pervaiz Khan (1994 CLC 2339),
(4) Azad Government v. Ch. Muhammad Aslam (Civil Appeal No, 53 of 1993, decided on 13-10-1993),
(5) Azad Government v. Raja Sultan Zamurd (Civil Appeal No, 48 of 1993, decided on 16-10-1993),
(6) Azad_ Government and others v. Muhammad Hameed Mughal and others (Civil Appeal No, 56 of 1993, decided on 27-12-1993 (1994 M LD 632).
6. ' The counsel for the appellant has further submitted that the High Court has wrongly expressed the view that there was any violation of the rules while passing the impugned order especially so when the appointment of the appellant was made on 'officiating basis' in his own pay scale. He maintained that even otherwise a writ petition does not lie against officiating appointment.
7. ' It was strenuously argued by the learned counsel for the appellant that in service matters the Service Tribunal has vast powers than the High Court while exercising the powers in a writ jurisdiction. The learned counsel further maintained that the respondent filed an appeal before the Prime Minister of Azad Jammu and Kashmir but in the writ petition he wilfully concealed this material fact thereby disentitling himself to any relief by way of writ jurisdiction. The learned counsel explained that the High Court erred in holding that the writ petition was in substance a writ of quo warranto and the High Court was competent to grant the relief.
8. ' Mr. Ghulam Mustafa Mughal, the learned counsel for the respondent, Sarwar Hussain, has controverted the arguments of the learned counsel for the appellant and maintained that the High Court was competent to issue the writ of quo warranto and defended the impugned judgment of the High Court in all respects.
9. ' We have carefully heard the respective contentions of the learned counsel for the parties. The fate of the present case according to our considered view hinges upon the question as to whether in service matters the writ petition is an appropriate remedy or the aggrieved person should seek the redressal of his grievance by way of representation, review, appeal etc. From the Departmental Authorities and thereafter to the Service Tribunal.
10. ' It is undenied that the disputes arising out of the final orders relating to the terms and conditions of a civil servant fall within the jurisdiction of the Service Tribunal and the jurisdiction of the High Court stands ousted in those matters. It is also undisputed that the promotion is certainly one of the terms and conditions of service. However, the main plank of attack of the learned counsel for the respondent appears to be that since the order of promotion was not passed by an authority competent to pass that order and such an order was not appealable before the Service Tribunal.
11. His contention precisely is that according to section 4 of the Service Tribunal Act an appeal lies against a final order made by a 'departmental authority' as defined in the explanation appended to the aforesaid section. He submitted that if an order is passed by an authority not competent to pass that order no appeal would lie under section 4 of the Service Tribunal and in such a situation a writ petition would be competent.
12. ' After going through the authorities cited by the learned counsel for the appellant and particularly the dictum laid down by this Court in cases reported as Accountant-General v. Zaman Hussain Khan (1993 SCR 259) and Azad Government v. Syed Zaman Ali Shah PLD 1991 SC (AJ&K) 5) referred to above, we are of the view that correct law has been enunciated in the aforesaid judicial pronouncements and we respectfully follow them. It will be useful to reproduce the following extracts from the aforesaid authorities:-- "Orders without jurisdiction" Orders without jurisdiction can be challenged before the Service Tribunal. The High Court has no jurisdiction to entertain the writs relating to service matters.
13. Jurisdiction of the High Court stands ousted."
14. "Departmental authority" means an authority which is competent to make an order regarding terms and conditions of civil servants."
15. Section 4 refers to an authority to make an order in respect of any of the terms and conditions and does not have the effect of laying down the conditions that the authority must be competent to pass appropriate order from which the appeal has to be filed. The words 'an order in respect of which any terms and condition' are words of liberal import and a restricted construction is not permissible. Therefore, the liberal interpretation of the `departmental authority' would include any authority which can pass an order in respect of any 'term and condition'.
16. ' After careful perusal of the aforesaid extracts we have come to the conclusion that all orders, whether they have been passed with jurisdiction or without jurisdiction are appealable to the Service Tribunal. Once the jurisdiction is barred either implicitly or impliedly, particularly by Constitutional provisions, the ouster clause becomes absolute and any departure or deviation from it is not permissible under law. It would, therefore, be futile to argue that when an order is void or is mala fide or is in the nature of coram non judice the High Court can entertain a petition under section 44 of the Interim Constitution Act even though the matter is within the jurisdiction of the Service Tribunal set up under the relevant law.
17. ' The submission of the learned counsel for the appellant that in service matters the powers of the Service Tribunal are much wider than the powers which are exercisable by the High Court under the writ jurisdiction is also not without any substance.
18. The fact of the matter is that the Tribunal is possessed with powers which are much wider than those exercisable by the High Court under writ jurisdiction. The role of the High Court under the supervisory jurisdiction is limited and relief can be granted only if the order passed suffers from such patent illegality that it can be called an order without lawful authority and of no legal effect.
19. On the other hand the Service Tribunal can set aside or vary an order passed by any departmental authority on entirely different grounds which admittedly cover wider range. Similarly the questions of fact can rarely be gone into by the High Court which are open to adjudication by the Service Tribunal.
20. ' So the result is that the jurisdiction of the High Court stands totally ousted and a writ petition cannot be entertained.
21. ' We have also taken note of the fact that the learned Judge in the High Court while accepting the writ petition of respondent Sarwar Hussain relied on the previous authority of this Court reported as 1993 PLC (C.S.) 297. On the analogy of the aforesaid dictum of this Court it was opined that when the order impugned is beyond the jurisdictional competence, void and in the nature of coram non judice not affecting the terms and conditions of civil servant the High Court is not barred from assuming the jurisdiction.
22. ' With utmost respect to the learned Judge we are of considered view that the aforesaid referred authority by any stretch of imagination does not advance the case of the respondent rather it clearly supports the contention of the appellant before us. It will be useful to refer a portion of the aforesaid authority relied upon by the learned Judge at page 7 of the High Court's judgment:-- "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.
23. On the other hand a writ of quo warranto can be filed by any person without being aggrieved of any order. An order 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."
24. (Underlining is ours)
25. ' Therefore, it becomes abundantly clear that the ratio decidendi of the above-referred authority is in contradistinction to the observation of the learned Judge in the High Court.
26. ' So far as the other points raised by the learned counsel for the appellant mentioned in the earlier part of this judgment are concerned, they are in one way or the other closely linked with the main point of ouster of jurisdiction and we need not dilate upon them as the appeal is being disposed of on the point of jurisdiction.
27. ' The upshot of the aforesaid discussion is that we accept the appeal of the appellant and vacate the judgment of the High Court dated 23-1-1994 with no order as to the costs.