' This writ petition under section 44 of AJ&K Interim Constitution Act, 1974 is addressed for a direction to the respondents for execution of the orders of the competent authority dated 27-12- 1993.
2. The brief facts as alleged in the petition are that the petitioner who is placed in the category of heads of Departments, filed a review petition against the order of the Government dated 12-5-1992, whereby certain heads of Departments of the Government were promoted to the post of Secretary to the Government. The Prime Minister felt pleased to accept the review petition on 27-12-1993 and ordered the promotion of the petitioner as Secretary to Government with effect from 15-1-1992. On failure of subordinate agencies to execute the order of the Prime Minister, the petitioner filed a representation before the Prime Minister for a. Direction to carry into effect the order dated 27-12- 1993. As alleged in the petition, the Prime Minister passed the directions on 22-2-1994; 25-6-1994; 13-7-1994; 27-8-1994 and 17-1-1995 to carry out his orders referred above, but no step was taken in compliance therewith.
3. Before admitting the writ petition for regular hearing, para-wise comments were sent for from Secretary Services, but the same were not placed on record in spite of repeated opportunities, consequently the petition was admitted for regular hearing. The respondents after admission of the petition, filed the written statement to the petition and objected to the jurisdiction of the Court on the ground of ouster of jurisdiction in view of section 47 of the Interim Constitution Act, 1974 and also objected to the maintainability of the petition on the ground that the petitioner is not an aggrieved person. Instead of giving the para-wise reply to the contentions raised in the petition, the respondents stated the facts not relevant at all and made an evasive denial of the facts pleaded in petition which amounts to admission. In reply to para. 2 of the petition, the respondents denying the facts agitated therein, stated that the order sought to be executed by the petitioner has been cancelled by the Prime Minister in review without stating the date of cancellation or placing anything on record.
4. The petitioner arguing his case himself contended that he stands admittedly promoted in Grade-20 and falls in category of the heads of Departments who are qualified and eligible to be promoted to the post of Secretary to the Government. The petitioner referred rules called as Azad Jammu and Kashmir Secretaries Service Rules, 1992 in support of his contention. The petitioner further contended that without taking into consideration the case of petitioner, a few officers of the Government were promoted to the post of Secretary to the Government who were admittedly junior to the petitioner, on which a review petition was filed against the order of the Government dated 12-5-1992 which was accepted by the Competent Authority on 27-12-1993 and order passed in review being final in view of rule 12 of the AJ&K Civil Servants Appeals Rules, 1991 (hereinafter to be called as Appeal Rules) was to be executed in the light of the order of the Competent Authority by a notification, as, according to the petitioner, the orders passed in appeal, review or representation under Appeal Rules are different from those which are passed in ordinary administrative capacity by the Competent Authority under Rules of Business. According to the petitioner, once the Competent Authority exercises the power under Appeal Rules, it becomes functus officio to undo the same in view of sub-rule (2) and (3) of rule 7, rule 8 and rule 12 of the Appeal Rules. The petitioner further contended that the contentions raised in the written statement that the order passed by the Prime Minister on 27-12-1993 has been cancelled on review is not communicated to him nor is so placed on record, and according to the petitioner, the order if at all there is any, that is contrary to the above-referred rules and is a nullity in the eyes of law. The petitioner further contended that the Secretary Services out of malice, in spite of above-referred legal position and unequivocal directions of the Prime Minister given from time to time, has travelled beyond his Authority and has in fact committed misconduct by not acting in accordance with the law and rules.
5. The learned Advocate-General arguing the case contended that the petitioner seeks the enforcement of terms and conditions of service which is a remedy to be granted by the Service Tribunal not by the High Court in view of the ouster of the jurisdiction enshrined in section 47 of. The Interim Constitution Act, 1974. The learned Advocate-General further contended that the order passed in review having been cancelled on second review, there remains nothing to be executed, hence the petition is liable to be dismissed.
6. Before proceeding further, the objections taken by the learned Advocate-General require to be disposed of. As the matter relates to a direction as visualized by section 44(2)(c) of the Constitution, the objection regarding jurisdiction is not tenable. Similarly the petitioner being aggrieved of the conduct of the respondents to execute the directions of the competent authority, he is an aggrieved person, hence right in invoking the jurisdiction of the High Court.
7. After hearing the petitioner in person and the learned Advocate-General, I sent for the record from Secretary Services and perused the file. The petitioner was also allowed the amendment in his petition to add the Government as a party when in the written statement it was stated that the Government has cancelled the order on review. I have perused the file of the Department as well and have considered the arguments advanced at bar. The provisions of Appeal Rules, 1991 to the extent these apply in the case in hand may be reproduced below before proceeding further:- "7(2). No appeal shall lie against the order passed on review under these rules; 7(3). Any order passed on appeal shall be final except otherwise specifically provided under these Rules;
(8) The provisions relating to appeal in these rules shall apply mutatis mutandis to the review petitions to be preferred under these rules;
(12) An order passed under these rules on an appeal, review or representation shall be final."
8. The file of the Government through which the learned Advocate-General alleged that the order in review dated 27-12-1993, has been cancelled is examined. The learned Advocate-General referred pages 34 and 35 of the file No, 2 of Services and General Administration Department relating to review petition of the petitioner wherein the Prime Minister has order as follows in para. 139: The learned Advocate-General referred para. 137 of the file contending it to be para. 4 of which the Prime Minister has ordered the sanction. Relevant para. 137 is as follows: {{URDU TEXT}}
9. Para. 4 of the File referred above in fact does not relate to the petitioner at all and on the perusal of the above-referred para., it transpires that it relates to one Qazi Khalilur Rehman and is a note of a Section Officer. The learned Advocate-General contended that file as a whole was not submitted to the Prime Minister for orders, but a summary was submitted on a loose paper with the new paras. On which the order in review has been cancelled by the Prime Minister. According to the Advocate-General the loose paper on which the summary is approved by the Prime Minister has been later on made a part of the file and renumbered with paras. Of the original file which is now para. 137.
10. The provisions of above-referred Appeal Rules have not been brought to the notice of the Prime Minister while obtaining the order on 16-8-1994, on the basis of which it is argued that the order passed in review has been cancelled by the Prime Minister. The Prime Minister has also not been apprised that the orders passed on appeal, representation and review are final when passed by the authority himself and cannot be reopened in second review, appeal or representation in any manner by any authority whatsoever. It has also not been brought to the notice of the Prime Minister that his directions dated 22-2-1994; 25-6-1994; 13-7-1994; 27-8-1994 and 17-1-1995 directing the execution of the order dated 27-12-1993 have not been given effect. Assuming there being any power left with the Prime Minister to cancel or review his order passed on review, it was the responsibiity of the Secretary Services to apprise the Prime Minister of the true legal position enshrined under the Appeal Rules and to submit his own proposal on the directions obtained from time to time in the light of Appeal Rules instead of resorting to prevarication of different paras.
11. Assuming the order sought to be executed by the petitioner as having been ordered to be reviewed, the Prime Minister has granted the sanction for review of the order passed in paras. 66 and 67. The paragraph No, 4 through which it is alleged by the Advocate-General that the order passed in review has been cancelled, is not the cancellation of the order passed in review, but simply the approval of the Prime Minister for review of paras. 66 and 67. The order as such has not been cancelled and it could not be so under the Appeal Rules.
12. There is a clear distinction between the orders passed under the Appeal Rules and those administrative orders which have to be passed and issued in accordance with the Rules of Business. The latter orders until carried into effect at the administrative level can be again looked into according to the administrative exigencies. But the orders passed by the authority under the Appeal Rules are the judicial in nature, and it is clear from the above-referred Appeal Rules that the finality is attached to such orders and an embargo is put upon the authority not to modify and review the same. The orders passed under the Appeal Rules have no nexus with those ordinarily passed under the Rules of Business on the proposal of the hierarchy of the administration. The Rules of Business nowhere visualise that the orders passed by the authority under the Rules of Business are final, while the Appeal Rules specifically mention that the orders passed under the review are final. The Prime Minister has not been apprised of this legal position. Besides legal position of the orders passed under the Appeal Rules being final and not open to review, it is not becoming conduct of the officers subordinate to the Prime Minister to ignore the directions and orders of the Prime Minister or to sleep over it. It in fact lowers down the authority of the Prime Minister when it is not cared even to mention of what effect the directions of the Prime Minister issued from time to time in this behalf referred above are. If the authority of the Prime Minister who is head of the executive is undermined in this way, even assuming his orders being against the rules, the system will collapse and ultimate sufferers would be the people and the representatives of the people.
13. As observed above, the order which the Advocate-General alleges to have been cancelled by the Prime Minister has not been cancelled, but a direction of the Prime Minister has been obtained for review of that order and the matter is again made sub judice before the Prime Minister. I, therefore, feel it proper to leave the matter to be considered by the Prime Minister in view of paras.
10, 11 and 12 of the judgment.
14. The petition is disposed of in the manner stated above.