1. ' SARDAR SAID MUHAMMAD KHAN, C.J.---This appeal by leave of the Court has been directed against the judgment of the High Court dated 23-6-1994, whereby accepting the writ petition filed by respondent No,1, a writ of prohibition was issued against the Government.
2. ' The case of the appellant if that he along with some others was promoted as Grade B-20 after the approval of the relevant Selection Board whereas respondent No,1 was not approved for promotion to grade B-20 and was thus superseded by the appellant and others. However, respondent No,1 maneuvered amendments in A.C.Rs, in his favor 'and on the basis of said amendment his review petition was accepted. Consequently the Notification dated 13-5-1993, was issued whereby he was also promoted to Grade B-20 with retrospective effect from 7-5-1992. As a result of the notification the respondent became senior to the appellant and some others, despite the fact that the appellant and some others had been promoted to Grade B-20 much earlier after the supersession for the respondent. Thereafter, one Ali Akbar, feeling aggrieved by the notification dated 13-5-1993, challenged the same before the competent Authority through a representation which was accepted and the respondent again became junior to the appellant and others. Thus, the Government intended to amend the retrospective order of promotion passed in favour of respondent. The respondent filed a writ petition in the High Court seeking a writ of prohibition against the Government that notification dated 13-5-1993 should not be amended or cancelled because in view of section 21 of the General Clauses Act once an order is acted upon, it cannot he amended, rescinded or cancelled, especially without hearing the party concerned. The High Court accepted the writ petition and issued the writ of prohibition against the Government.
3. ' It has been Contended by Mr. Shiraz Kayani, the learned counsel for the appellant that the High Court has committed an error in passing the impugned order because the writ jurisdiction of the High Court was barred in view of section 47 of the Azad Jammu and Kashmir Interim Constitution Act. The learned counsel has maintained that the Notification dated 13-5-1993 whereby respondent No, 1 was promoted to Grade B-20, deals with the factum of promotion which is one of the terms and conditions of the service of the respondent. Thus the High Court could not direct the Government by a writ of prohibition not to rescind, amend or cancel the said notification because it had been acted upon. The learned counsel for the appellant has maintained that if an order is found to be clearly violative of law that can be rescinded even after the same had been acted upon. The learned counsel argued that in the instant case section 22 of the Civil Servants Act could not be pressed into service to do away with the requirement of sending the case of respondent No, I .To the concerned Selection Board for promotion. The learned counsel referred to a case reported as 'Sh. Manzoor Ahmad v. Azad Government and another (1995 PLC (C.S.) 59) in support of his aforesaid contention. The learned counsel further maintained that one of the grounds on which the writ prayed for was that the Government could not disturb the notification in dispute without hearing the appellant but the High Court issued a writ of absolute prohibition which implies that notification cannot be cancelled even after hearing the respondent which is not legally correct. The learned counsel has argued that the appellant has submitted an application for the condonation of delay on the grounds that he had no knowledge of the review petition or the writ petition filed by the respondent because he was not impleaded as a party in any of these proceedings. The learned counsel submitted that the application for condonation of delay in filing the petition for leave to appeal is supported by an affidavit of which there is no rebuttal. Thus, according to the learned counsel it is a fit case in which delay in filing the petition for leave to appeal should be condoned. The learned counsel for the appellant has supported his submissions by the authorities reported as The Engineering-in-Chief Branch through Ministry of Defence, Rawalpindi and another v. Jalal-ud-din' (1989 SCMR 441), wherein it was held that the principle of locus penitential is not available in a case of promotion because that is not vested right and also in a case where the order is patently illegal. In case reported as 'Raja Naveed Hussain Khan and others v. Qazi Khalil- ulRehman and others' (1994 SCR 267), it was observed that in case of violation of terms and conditions of a civil servant the writ jurisdiction of the High Court is ousted. The matter relating to the terms and conditions of a civil servant is only cognizable by the Service .Tribunal in view of section 47 of the Azad Jammu and Kashmir Interim Constitution Act.
4. ' In reply it has been contended that the petition for leave to appeal is time-barred by 142 days and there is no valid ground for condoning the delay in filing the same. The learned counsel has argued that Notification dated 13-5-1993 was circulated to all the concerned departments including the Education Secretary and thus it cannot be assumed that the appellant had no knowledge of the said notification or the writ petition filed by the respondent. The learned counsel for the respondent maintained that the delay cannot be condoned on flimsy ground or as a matter of routine. To support his contention he has referred to a case reported as 'Muhammad Nazir and others v. Khan Afsar Khan and others' (1993 SCR 112), wherein it has been held that the condo nation has nexus with reasonable grounds and an order of condo nation cannot be passed in vacuum without any application for condoning the delay. Coming to the merits of the case it has been contended by the learned counsel that there is no question of lack of jurisdiction of the High Court in the instant case because the respondent merely sought the protection of the Notification dated 13-5-1993 whereby he was promoted to Grade B-20 and also because the notification had been acted upon and thus the Government-respondent had no locus penitential to annul the same. It has been further argued on behalf of the respondent that taking into consideration the circumstances of the case the legal requirement for appearing before the Selection Board was rightly relaxed under section 22 of the Civil Servants Act.
5. We have given our due consideration to the arguments raised at the Bar. So far as the question of limitation is concerned, the appellants were not impleaded as party in the writ petition. The mere fact that copies of Notification dated 13-5-1993 were also sent to the various departments including Secretary Education does not imply that the appellant had the knowledge of the impugned order or for that matter knew about the fact that a writ petition had been lodged by the respondent in the High Court. The application for condonation of delay has been supported by an affidavit which has not been controverted by filing a counter-affidavit. Thus, it cannot be said in these circumstances that the appellant failed to file appeal within the prescribed period, despite his knowledge of the impugned order. Therefore, the delay in filing the petition for leave to appeal is condoned.
6. ' So far as the question of jurisdiction of the High Court is concerned. We have repeatedly held that if the matter falls within the ambit of 'terms and conditions' of a civil servant the grievance regarding the same cannot be redressed by invoking the writ jurisdiction of the High Court, in view of section 47 of the Azad Jammu and Kashmir Interim Constitution Act. In the instant case the respondent No,1 wanted to protect an order which pertained .To his promotion because the same had been acted upon; it was also stated that before amending or cancelling the said order, the respondent was not given the opportunity of being heard. However, the High Court issued the writ of prohibition in terms that the Notification dated 13-5-1993 shall not be disturbed at all which means that the notification in question cannot be cancelled or amended even after hearing the respondent. It may be stated here that as has been held in case reported as 'The Engineering-in- Chief Branch through Ministry of Defence, Rawalpindi and another v. Jalal-ud-Din' (1989 SCMR 441) referred to above, an order which is patently illegal or void can he recalled even the same had been acted upon. In such case the principle of audi alteram partem' may be violated but it cannot be said that even if an order is illegal, the same cannot be cancelled, rescinded or amended because it had been acted upon. It would not be proper for us to make any further comments so far as the legality of the order dated 13-5-1993 is concerned; it is for the appropriate authorities to consider its legality. However, it may be emphasized here that the High Court while passing the impugned judgment has not taken into consideration the dictum given by this Court that if matter pertains to the terms and conditions of civil servants the writ jurisdiction of the High Court cannot be invoked in view of section 47 of the Interim Constitution Act, 1974. A reference may be made to a case 'Raja Naveed Hussain Khan v. Qazi Khalil-ul-Rehman and others' (1994 SCR 267) referred to above, in which, the point has been dealt with at length. Besides, the High Court has taken an erroneous view in issuing an absolute writ which implies that an order which has been acted upon cannot be recalled, rescinded or amended even if the same is patently illegal.
7. ' The upshot of the above discussion is that we accept the appeal, set aside the impugned judgment of the High Court date 23-6-1994. Consequently the writ filed by the petitioner- respondent stands dismissed. No order as to the costs.