1. ' BASHARAT AHMAD SHAIKH, J.---This is an appeal filed by four civil servants who are working in the Tourism Department of the Government to challenge the order passed by the High Court on 6th of June 1995 by which a writ petition filed by Shaukat Jan Bauch, the respondent before this Court was accepted and the Chief Secretary and Secretary Services and General Administration of the Government, who are shown as preform respondents in the appeal, were directed to execute, in accordance with Rules of Business two orders, passed by the Prime Minister of Azad Jammu and Kashmir in favor of respondent Shaukat Jan Bauch. The appellants were not party before the High Court but were granted leave to appeal because they pleaded that their service rights had been adversely affected by the judgment of the High Court passed in their absence. In short, the plea of the appellants is that the lien of respondent Shaukat Jan Bauch in the Tourism Department stood terminated and if he returns to the Tourism Department the appellants apprehend that appellants Nos.1 to 3 will be reverted while the services of appellant No,,4 may be dispensed with.
2. ' Briefly stated, in his writ petition, Shaukat Jan Bauch filed five years ago on 7th of November, 1991, made the following averments. He joined the Tourism Department as Deputy Director on 12th of December, 1975. His substantive post in the said Department was in B-18, but from the Ist of December, 1986 he was placed in B-19 on the basis of move-over. The post of Director Tourism was ex-officio which was held by the Chief Conservator of Forests as an additional charge. He made repeated representations to the Government that in light of his qualifications, seniority, experience and suitability he may be promoted to the post of Director Tourism but, allegedly with mala fide motives, no favorable order was issued; instead he was transferred from his parent department to the department of Industries and Labour. Ultimately on 3rd of September, 1990 the Chief Executive of the Government, accepting the recommendations/proposal of Minister Tourism accorded sanction to the promotion of the respondent as Director Tourism on his own pay and scale till such time as the post of Director Tourism was created. This order was not implemented by the Chief Secretary and the Secretary Services and General Administration. The Chief Executive passed another order on 15th of October, 1990 asking the respondents to show cause why his orders were not implemented. He further directed them to implement the order but, instead they asked their subordinates to process the case. After six months the file was re-submitted to the Chief Executive soliciting orders for creation of the post of Director Tourism. The Chief Executive accorded his approval on 29th of April, 1991. Even then the order for creation of the post of Director Tourism and the posting orders were not issued. Thereupon writ petition was filed in the High Court with the prayer that Chief Secretary and Secretary Services and General Administration may be directed to implement the orders of the Chief Executive passed on 3rd of September, 1990, 15th of October, 1990 and 29th of April, 1991.
3. ' The writ petition was admitted. In the written statement it was averred by the respondents that no sanctioned post of Director Tourism was in existence. It was admitted that the Chief Executive had issued directions to promote the petitioner as Director Tourism but it was pleaded that the post of Director Tourism could not be created due to financial implications. It was stated that in light of the order of the Chief Executive the matter of creation of post was processed but the concurrence of the Finance Department could not be obtained. It was also brought to the notice of the Court that subsequently another order was passed by the Prime Minister on 2nd of January, 1992 in which he directed the Chief Secretary to prepare a proposal to set up a new Directorate by amalgamating the Departments of Wild Life, Fisheries, Tourism and Archaeology. Copy of the order was also filed in the High Court. It was pleaded that it was clear from the aforesaid document that a separate post of Director Tourism was not to be created. An objection was also raised before the High Court that the matter pertained to terms and conditions of service and thus in presence of a duly constituted Service Tribunal to deal with such terms the jurisdiction of the High Court was totally ousted.
4. ' While accepting the writ petition a learned Judge in the High Court overruled the objection about jurisdiction. The learned Judge, after elaborate discussion of the relevant provisions expressed the view, inter alia, that an appeal to the Service Tribunal lies only if there is an adverse order in respect of terms and conditions of civil servant but is not maintainable if there is a favourable order passed by the Government which is not being implemented by the functionaries of the Government. The learned Judge expressed the opinion that Service Tribunal has no jurisdiction if a public functionary is procrastinating in executing the order of the competent authority.
5. ' Before us, various grounds have been raised by the appellants to challenge the order passed by the High Court. It was contended that there was no sanctioned post of Director Tourism and thus the order of the Prime Minister directing that respondent Shaukat Jan Bauch may be appointed as Director Tourism was illegal. It was further contended that in accordance with the Rules of Business of Azad Government, the Chief Conservator of Forests was the ex-officio Director of Tourism Department and therefore, a different person could not legally be appointed as Director Tourism. It was then contended that no civil servant could be promoted without advice of the Selection Board which was lacking in the present case. It was contended that due to these illegalities attached to the orders of the Prime Minister no order could be issued by the High Court as it would have amounted to issuing a direction to give effect to an unlawful order. Reliance was placed on Maj. Retd. Muhammad Aftab Ahmad v. Azad Government 1992 SCMR 307 in which it was laid down by this Court that order passed by the Prime Minister which was violative of the relevant rules was unlawful and could not be enforced by the High Court in its writ jurisdiction. It was vehemently contended that the jurisdiction of the High Court stood ousted in view of the fact that matter pertained to terms and conditions of civil servants which were within exclusive jurisdiction of the Service Tribunal.
6. ' The learned counsel for respondent, Kh. Shahad Ahmad, vehemently contended that the arguments raised by the learned counsel for the appellants were devoid of any force because the order under appeal had been wrongly understood by the appellants. He drew our attention to the operative part of the judgment which runs as follows:-- "In view of the above accepting the writ petition respondents are directed to execute the orders of the Prime Minister dated 3-9-1990 and 29-4-1991 in accordance with the Rules of Business within a reasonable time."
7. ' It was explained by Kh. Shahad Ahmad that the High Court had not issued a direction that orders may be issued by the Chief Secretary and Secretary Services and General Administration for promotion of the respondent as Director Tourism but a direction had only been given to execute the orders of the Prime Minister in accordance with Rules of Business. The learned counsel drew our attention to the following passage from the order under appeal:-- "The petitioner seeks a direction to support the order passed by the Prime Minister against the respondents who are bound either to act according to the order forthwith or resubmit the same with their own submissions. The procrastinating attitude of the respondents leaves the petitioner with no other remedy than to seek a direction from the High Court, under section 44(2)(a)(i) of the Constitution."
8. ' It was submitted that in obedience to the order of the High Court the respondents in the writ petition were free either to act according to the orders passed by the Prime Minister or to re-submit the case to the Prime Minister, with their own notes, for reconsideration. It was further stated that the learned Judge in the High Court at another place observed as follows:-- '"The matter involved here is not with respect to the terms and conditions of service, but a question of respondents duty to act in accordance with law, namely, rules 7 and 8 of the Rules of Business."
9. ' Rule 7 enumerates the functions and powers of the Chief Secretary while duties and functions of a Secretary are enumerated in Rule 8. It is laid down in clause (g) of rule 8 that if orders of a Minister appear to involve a departure from a rule or Government policy the case may be re-submitted to him.
10. ' Dealing with locus standi of the appellants to file the present appeal it was contended by Kh.
11. Shahad Ahmad that the post to which the respondent was seeking promotion was of Director Tourism but none of the appellants was holding the post of Director Tourism. It was contended that if the respondent is appointed as Director Tourism none of the appellants would be reverted. In fact no adverse effect would be caused on their service rights.
12. ' It is clear from the submissions made by Kh. Shahad Ahmad that the apprehensions raised by the appellants are misconceived. It is respondent Shaukat Jan Bauch who filed a writ petition in the High Court. It is in his favour that an order has been passed. The way in which the order of the High Court has been interpreted by the appellants is contested by the respondent. The interpretation adopted by the learned counsel for the respondent is that the High Court has not ordered the promotion of the respondent but has ordered the execution of the order of Prime Minister in accordance with the Rules of Business which means that the orders can be re-submitted to the Prime Minister for re-consideration if the Chief Secretary or the Secretary Services and General Administration are of the view that order violates any rule, regulation or Government policy.
13. The orders of which the respondent wants implementation were passed by the Prime Minister on 3rd September, 1990, 15th October, 1990 and 29th April, 1991. These orders have neither been implemented nor have been re-submitted to the Prime Minister in accordance with the Rules of Business. In these circumstances a writ petition is maintainable. In S.H.M. Rizvi v. Maqsood Ahmed PLD 1981 SC 612 the Supreme Court of Pakistan observed as follows:- "The Civil Servants (Appeal) Rules, 1977 enforced on 1st January, 1977, read along with section 22 of the Act exhaust the remedies available to a civil servant for redress of the grievances within the department. It is either a right of appeal or a right to make a representation. In cases where the departmental authorities procrastinate or contumaciously refuse to pass a final order, as appears to have happened on the objection of the respondent, (for the objection filed in 1976 remains to- date indisposed of and the provisional list that issued in 1976 is yet to be finalized) the remedy for the aggrieved civil servant is to represent to the next higher authority and after waiting for a reasonable time to seek Constitutional remedy for a direction to the departmental authority to perform a duty enjoined upon it by law. The Service Tribunal being a statutory forum with restricted jurisdiction cannot in the absence of a final order of departmental authority to adjudicate on all legitimate grievances of civil Servants."
14. This judgment has been followed by the High Court in the order under appeal. Under the Rules of Business, the Chief Secretary and Secretary Services and General Administration are bound to implement the order of the Competent Authority or to re-submit it for reconsideration. The High Court can therefore, issue a direction to do that they are bound by law to do. In such matters the rights of civil servants are not decided by the High Court itself but the functionaries of the State are directed to act in accordance with law and to decide the terms and conditions of service. In view of the matter, we find that no exception can be taken to the order passed by the High Court in the present case.
15. ' With these observations the appeal is dismissed. However, there is no order as to costs.