1. ' The above captioned writ petitions call in question the vires of the Notification No, HOME/P/2/43/91, dated 14-10-1992, whereby an amendment in the AJ&K Police Service (Composition and Cadre)
2. Rules, 1983 is made.
3. ' Both the petitions raise common question of law and facts, hence are decided together.
4. ' The brief facts leading to these petitions are that petitioners are PDSPs in the Police Department and have combined seniority and status with the DSPs of the Police Department. They are governed by the Police Rules, known as Azad Jammu and Kashmir, Police Service (Composition and Cadre) Rules, 1983. (Hereinafter to be called as Rules). The terms and conditions of their seniority, promotion etc. Are governed by these rules. The Government, in exercise of its powers under section 23 of the AJ&K Civil Servants Act, 1976, made an amendment in rule 4 by adding a sub-rule by substitution, whereby a proportional promotion to the post of S.P. From the post of PDSPs and DSPs is provided. The petitioners have challenged the above amendment in the rules on the ground that the amendment is discriminatory, against the fundamental rights as enshrined in the Constitution and for being violative of other service rules applicable to the petitioners. The petitioners, allege that the impugned notification adversely affects their conditions of service. The respondents, besides filing parawise rejoinder to the petitions, have objected to the jurisdiction of the Court in view of section 47 of the AJ&K Interim Constitution Act, 1974.
5. ' I have heard the learned counsel for the parties at length. The learned counsel for the petitioners arguing his case contended that the impugned notification visualizes discriminatory treatment between members of the same class of Police Officers which is against the fundamental right of equal treatment. It's further contended that at the time of induction of the petitioners in the service, this rule was not in force and subsequent enactment of the rule without a notice to the petitioners or its publication, is against the terms and conditions of the petitioners' service. The learned counsel for the petitioners made a reference to AIR 1962 Raj.
35. The learned counsel contended that no other remedy is available to the petitioners against the impugned notification, as no formal order is passed by the departmental authority as visualized by sections 4 and 5 of the Service Tribunals Act. The learned counsel further contended; at the impugned notification is against section 23 of the General Clauses A. The learned counsel for the respondents, Mr. Ghulam Mustafa Mughal the arguments contended that the impugned notification is issued government in exercise of its powers under section 23 of the AJ&K Civil Servants Act, 1976, and the grievance if any, can be redressed by the Service Tribunal, which is vested with the exclusive jurisdiction in the matter, in view of section 47 of the Interim Constitution Act, 1974. The learned counsel made reference to PLD 1980 SC (AJ&K) 5; PLD 1989 SC 262 and 1991 SCMR 1041.
6. ' After hearing the learned counsel for the parties, I am of the opinion that the principal question for adjudication before the Court is as to whether the matter of amendment in the rules affecting the terms and conditions of the civil servants can be agitated before the Service Tribunal for its being violative to the Constitution or any other law? The terms and conditions of the civil servants are governed by the Civil Servants Act, 1976 and the rules made thereunder. An amendment in any rule having the implication of effecting the terms and conditions of the civil servants immediately or in future, definitely effect the interest of a civil servant, but a rule having such an implication is not challengeable and cannot be struck down by the High Court simply on the ground that it is not an order by the departmental authority to be challenged before the Service Tribunal. Order is a mandate of law whether passed under a law or rule by an authority vested with the power or having such an effect by the operation of law or rule itself; thus, challengeable in the similar manner and before the same forum as provided by law applicable to that class of person. In an eventuality, as in the case in hand, two courses are open to a civil servant, firstly either to challenge the vires of the rule before the Service Tribunal, as the notification having the force of a final order is issued by an authority, who at the same time is competent to pass any order with respect to the terms and conditions of the civil servant concerned; and secondly, to wait till a specific order effecting the right of the civil servant is passed under the notification, alleged to be ultra vires of the Constitution or a Law. The view that rule or law itself i's a final order finds support from the following view held in T.A. Sharwani and others v. Government of Pakistan and others (1991 SCMR 1041): ' From the above-cited cases, it is evident that it has been consistently held inter alia by this Court that a civil servant if is aggrieved by a final order, whether original or appellate, passed by a departmental authority in respect of his terms and conditions, his remedy, if any, is by way of an appeal before the Service Tribunal even where the case involves vires of a particular Service Rule or a Notification or the question, whether an accused civil servant can claim the right to be represented by a counsel before the Enquiry Officer. We are inclined to hold that if a statutory rule or a notification adversely affects the terms and conditions of a civil servant. The same can be treated as an order in terms of subsection (1) of section 4 of the Act in order to file an appeal before the Service Tribunal. However, in the present case, the petitioners' case is found solely on the ground of discriminatory treatment in violation of Article 25 of the Constitution and not because of any breach of any provision of the Civil Servants Act or any service rule. Furthermore, the question involved is of public importance as it affects all the present and future pensioners and, therefore, falls within the compass of clause (3) of Article 184 of the Constitution. However, we may clarify that a civil servant cannot bypass the jurisdiction of the Service Tribunal by adding a ground of violation of the Fundamental Rights. The Service Tribunal will have jurisdiction in a case which is founded on the terms and conditions of the service even if it involves the question of violation of the Fundamental Rights." (Underlining is mine).
7. The Constitutionality, legality and vires of a law or rule can be competently adjudicated by the Service Tribunal as well, if it has an effect of adversely effecting the terms and conditions of a civil servant and the Tribunal is competent to strike down such a law which effects the fundamental right of a civil servant. Reference may be made to the following para. From the case of "Ghiasul Haq and others v. Azad Government and others" PLD 1980 SC (AJ&K) 5): "It is true that ground on which the reliefs enumerated in subsection (1) of section 5 of Azad Jammu and Kashmir Services Tribunal Act, 1975, may be granted by Tribunal, are not set out anywhere, but it does not follow that the dispute of the kind with which we are concerned, here, fill as outside the scope of an appeal to be tried by the Tribunal under section 5 of the 1975 Act, read with section 47 of the Constitution Act, 1974. There being no particularisation of the grounds which may be taken in an appeal, the aggrieved civil servant is at liberty to take all conceivable grounds based on facts and law to throw a challenge to the validity of the order complained against. The Tribunal is to exercise exclusive jurisdiction in respect of matters relating to the terms and conditions of the services of the civil servants, including disciplinary matters. The terms `matters relating to the terms and conditions' and 'disciplinary matters' are of wide connotation. If a person has been dismissed, removed from service, reduced in rank or retired compulsorily, these terms would embrace the entire process beginning with the initiation of the proceedings and culminating in the final order, including the question as to which of the procedure laid down in sub-rules (2) and (3) of rule 6 of the Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977 should have been observed by the authorised officers. When the respondents had approached the High Court with the prayer that sub-rule (3) of rule 6, which provided for a summary procedure, be declared ultra vires, being repugnant of the equality clause, guaranteed by the Constitution Act, did it not mean that, on their own view of law, sub-rule (3) being inconsistent with paragraph 15 of the Fundamental Rights, was deemed to be non-existent in their case, and the only valid provision applicable to their case was sub-rule (2) of rule 6? There is no provision in the Constitution Act or in any other enactment ousting the jurisdiction of the Tribunal to determine such a question. It is well- established that in order to decide a dispute or a matter, it is competent for Court or Tribunal to determine all questions arising therefrom, connected or ancillary thereto, determination of which, is necessary for the decision of the main dispute or matter, unless its jurisdiction to determine the same is expressly or impliedly barred. In this view of the matter also the Services Tribunal is competent to determine, whether or not sub-rules (2) to (4) of rule 6 of the of the Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977 is hit by equality clause and as to which of the two procedures prescribed by rule 6 should have been observed by the authorised officers in the case of respondents." (Underlining is mine).
8. The argument of the learned counsel for the petitioners that the Government cannot amend rules adversely effecting the terms and conditions of a civil servant after their induction in the service cannot be accepted for the reason that rule-making authority is vested with the powers to make the rules which includes the amendment therein. Reference may be made to "Falk Sher Khan and another v. Mukhtar Ahmed and others (PLD 1989 SC 262). However, the reasonableness or vires of such a latter amendment can be tested before the forum vested with the powers to redress the grievance of the aggrieved civil servant. AIR 1962 Rajasthan 35 and section 23 of the General Clauses Act, referred by the learned counsel for the petitioners, has no relevance to the case in hand.
9. ' In view of above, the jurisdiction of the High Court is excluded to adjudicate upon the matter brought before it. The petitioners may redress their grievance(s) before the proper forum. The petitions are dismissed without any order as to costs.