' The above-referred Constitutional petitions involve comon points of law. And in Petition No, 29 of 1995 a specific declaration is also sought. In view of commonality of points involved, the petitions are heard and decided together by the proposed order.
2. The brief facts agitated through Petitions Nos, 29 and 30 of 1995 are that the petitioner was Headmaster in the Azad Kashmir Government Education Department when he was transferred and posted in the Agro- technical Centre managed and run by the Federal Government. The institution was taken over by Azad Kashmir Government in 1979 through Notification dated 11-4-1979, wherein it was provided that till the new rules are framed for the purpose, the petitioner and others in the same cadre will be governed by the same seniority as they had before their posting in the Agro- technical Centre. The petitioner filed an application before the competent Authority for inclusion of his name in the seniority list in the Education Department on 8-5-1989. The application of the petitioner remained indisposed till the filing of the writ petition. The petitioner alleges that a similar petition filed by Sardar Khurshid Khan on 8-12-1990 had been decided by the competent Authority on 3-11-1993. According to the petitioner the respondent No,1 being the authority in the case of the petitioner is bound to dispose of the petition filed by the petitioner and withholding the disposal of the petition tantamount to failure in his duty to do what the respondent under law is obliged to do.
The petitioner seeks a direction for disposal of his petition filed on 8-5-1989.
3. In the other petition filed by the petitioner, he has, reiterating the same facts, challenged the provisions of section 21 of the Civil Servants Act, 1976 and the provisos attached to section 4 of the Service Tribunal Act, 1975, besides the Service Appeal Rules, 1992. The petitioner in Petition No, 276 of 1997 also calls in question the constitutionality of the provisos (a) and (b) of section 4 of the Service Tribunal Act, 1975.
4. I have heard the learned counsel for the parties. The learned counsel for the petitioners and Advocate-General have submitted the written arguments as well. The main thrust of the arguments submitted in writing by the learned counsel for the petitioners and as argued at Bar is that provisos (a) and (b) of section 4 of the Service Tribunal Act are contrary to section 47 of the Constitution as they practically make an appeal impossible before the Service Tribunal and the relief to which an aggrieved civil servant is entitled is frustrated at least for 90 to 120 days. It further appears from the arguments that the aggrieved civil servant is put at the mercy of the same authority which has passed the adverse order against him to deal with his case and thus, reaffirm the order already passed against him. The arguments further reveal that provisos referred above practically endeavour to perpetuate injustice by not only making a redress impossible but also by prohibiting the judicial remedy for at least 90- days. The provisions of section 21 of the Civil Servants Act, 1976 are attacked as being against the Constitution on the ground that they subject the jurisdiction of the Tribunal to the rules framed under the Act regulating the appeal, representation etc. ' The Additional Advocate-General in his written arguments has contended that alternate remedy of appeal, review and representation is provided to the aggrieved civil servant under section 21 of the Civil Servants Act and under section 4 of the Service Tribunal Act, a civil servant is obliged to avail the alternate remedy before invoking the jurisdiction of the Tribunal. In the presence of the alternate remedy, the provisos of section 4 of the Service Tribunal Act cannot be said to be discriminatory or against the Constitution simply for the reason that the remedy is not adequate. It is further contended that petitioner Abdul Qayyum should have filed appeal before the Tribunal after 90 days of presentation of representation on failure of the authority to decide the same.
5. For having a true perception of the proposition falling for determination in the case, provisions of section 21 of the Azad Jammu and Kashmir Civil Servants Act, 1976, provisos (a) and (b) of section 4 of the Azad Jammu and Kashmir Service Tribunal Act, 1975 and section 47 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, may be reproduced as under:-- Section 21 of Azad Jammu and Kashmir Civil Servants Act, 1976.
(1) Right of appeal or representation.---(1) Where a right to prefer an appeal or apply for review in respect of any order relating to the terms and conditions of his service is allowed to a civil servant by any rules applicable to him such appeal or application shall, except as may otherwise be prescribed, be made within sixty days of the communication to him of such order.
(2) Where no provision for appeal or review exists in the rules in respect of any order, a civil servant aggrieved by any such order may, except where such order is made by the Government, within sixty days of the communication to him of such order, make a representation against it to the authority next above the authority which made the order.
Section 4 of the Azad Jammu and Kashmir Service Tribunal Act,. 1975.
Appeal to Tribunals.---(1) Any civil servant aggrieved by any final order, whether original or appellate, made by a departmental authority, in respect of any of the terms and conditions of his service, may, within thirty days of the communication of such order to him or within six months of the establishment of the appropriate Tribunal, whichever is later, prefer an appeal to the Tribunal: Provided that;
(a) Where an appeal, review or representation to a departmental authority is provided under the Azad Jammu and Kashmir Civil Servants Act, 1976 or any rules, against any such order, no appeal shall lie to a Tribunal unless the aggrieved civil servant has preferred an appeal or an application for review or representation to such departmental authority and a period of ninety days has elapsed from the date on which such appeal, application or representation was so preferred;
(b) no appeal shall lie to a Tribunal against an order or decision of a departmental authority determining the fitness or otherwise of a person to be appointed or to hold a particular post or to be promoted to a higher grade; and Section 47 of the Azad Jammu and Kashmir Interim Constitution Act, 1974.
(1) Administrative Courts and Tribunals. ---(1) Notwithstanding anything hereinbefore contained, the council in respect of matters to which its executive authority extends, and the Assembly in respect of matters to which the executive authority of the Government extends, may by Act provide for the establishment of one or more Administrative Courts or Tribunals to exercise exclusive jurisdiction in respect ,of--
(a) Matters relating to the terms and conditions of persons who are or have been in the service of Azad Jammu and Kashmir including disciplinary matters;
(b) [......................................................
(c) [
(2) Notwithstanding anything hereinbefore contained, where any Administrative Court or Tribunal is established under subsection (1), no other Court shall grant an injunction, make any order or entertain any proceeding in respect of any matter to which the jurisdiction of such Administrative Court or Tribunal extends and all proceedings in respect of any such matter which may be pending before such other Court immediately before the establishment of the Administrative Court or Tribunal shall abate on such establishment.
(3) An appeal to the (Supreme Court of Azad Jammu and Kashmir) from a judgment, decree, order or sentence of an Administrative Court or Tribunal shall lie only if the (Supreme Court of Azad Jammu and Kashmir) being satisfied, that the case involves a substantial question of law of public importance, grants leave to appeal.
6. The Constitution under its section 47, authorizes the Legislature i,e, Council and Assembly to establish Administrative Courts or Tribunals for exercising the exclusive jurisdiction with respect to the matters referred in sub-clause (a), (b) and (c) of this section. The Legislature has established the Service Tribunal in Azad Kashmir under Service Tribunal Act. 1975 to exercise jurisdiction regarding matters relating to the terms and conditions of service in respect of persons in the service of Azad Jammu and Kashmir employed in connection with the affairs of the Government.
The Supreme Court of Azad Jammu and Kashmir in the case Azad Jammu and Kashmir Government v. Zaman Ali Shah and others reported as PLD 1991 SC (AJ&K) 57 has held that all the matters contained in Chapter II of the Civil Servants Act relate to terms and conditions of civil servant. It is held in para.8 that:-- "Under section 4 of the Azad Jammu and Kashmir Service Tribunal Act the Service Tribunal has been vested with exclusive jurisdiction to hear appeals against final orders in respect of terms and conditions of service. Terms and conditions of civil servants are large in number and so scattered that it is not easy to summarize them but the plain fact is that some of them can be easily found in the Civil Servants Act in Chapter II. The title of Chapter II is 'Terms and conditions of service of civil servants'. Section 3 which is the first section in the Chapter lays down as follows.
' The terms and conditions of service of a civil servant shall be as provided in this Act and the rules."
7. It is again held in the Accountant-General and others v. Zaman Hussain Khan (1998 PLC (C.S.)
431) at pages 273 and 274 that; "The matters which are included in Chapter II are appointment, probation, confirmation, seniority, promotion, posting, transfer, termination of service, retirement from service, removal from service, reversion to lower grade or service, re-employment, conduct, efficiency and discipline, pay, leave, pension, gratuity, provident fund and group insurance. The authorities who are competent to pass appropriate orders in respect of terms and conditions have been specified under different rules and delegation orders. Similarly the authorities competent to award penalties are specified in the Civil Servants (Efficiency and Discipline) Rules. The 'authorised officers' have been vested with authority to impose minor penalties while major penalties have been reserved for 'the authority'.
Every authority who can pass an order in respect of any of these terms and conditions is a departmental authority within the meaning of explanation appended to section 4 of the Service Tribunal Act. Therefore, if an order has been passed by any of these authorities appeal would lie to the Service Tribunal. If an authority transgresses its jurisdiction, and passes an order without jurisdiction or imposes a major penalty which cannot be imposed by him, it will be a good ground on which an appeal before the Service Tribunal can be based."
8. The Legislature has conferred extensive power upon the Service Tribunal to deal with all the matters relating to terms and conditions of service of the employees in the service of the Government where an employee is aggrieved of an order affecting adversely his service. The special forum of the Tribunal is meant to facilitate, expedite and consolidate the matters relating to the civil servants so that they are relieved of the burden of the technicalities of the Civil Courts, including High Court as for as the procedural aspect of the cases before the ordinary Courts are concerned. The Supreme Court in the case of "Accountant-General v. Zaman Hussain Khan (1998 PLC (C.S.) 431)" has held as follows: "Another important aspect of the matter is that powers exercised by the Service Tribunal are much wider than the powers which are exercisable by the High Court under the writ jurisdiction. It is my considered view that although certain unnecessary restrictions and technicalities are attached to the exercise of power by the Service Tribunal, the Tribunal is possessed with powers which are much wider than those exercisable by a High Court under writ jurisdiction. The role of the High Court under the supervisory jurisdiction is limited and relief can be transposed only if the order passed in respect of a civil servant suffers from such patent illegality that it can be called an order without lawful authority and of no legal effect. On the other hand the Service Tribunal can set aside or variant order passed by any departmental authority on entirely different grounds which admittedly cover wide range. Similarly question of fact can rarely be gone into by the High Court which are open to adjudication by a Service Tribunal. Thus, it is not understandable as to why supervisory jurisdiction of the High Court over the appellate jurisdiction of the Service Tribunal should be preferred by a civil servant. The law-maker has provided the civil servant with new and adequate remedy which he could not avail of prior to the enactment of the Azad Jammu and Kashmir Interim Constitution Act, 1974,"
9. Similarly in the case of Muhammad Latif Khan v. Sarwar Hussain and others (1995 SCR 171) it is held; "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.
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. So, the result is that the jurisdiction of the High Court stands totally ousted and a writ petition cannot be entertained."
10. It is for the above purpose that the jurisdiction of all other Courts is excluded in matters under section 47 of the Constitution where the Tribunal is authorized to adjudicate. The exclusion of jurisdiction in those matters is absolute and final, and so is held by the Supreme Court in the cases referred above.
11. Sine qua non for invoking the jurisdiction of the Tribunal is the existence of an adverse order, having the effect of adversely affecting the terms and conditions of the civil servant and his being aggrieved of the order, which in other words means that, unless there is a specific order adversely affecting the civil servant and he is found aggrieved, the jurisdiction of the Tribunal cannot be invoked and in those matters the jurisdiction of the Civil Courts i,e, High Court remains in tact. While examining the legality of an adverse order, the Service Tribunal can strike down the order or a rule, having the effect of adversely affecting the terms and conditions of the civil servant, it can issue directions of the appropriate nature to dilute the adverse effect of the impugned order. But when a departmental authority does not act under law or rule, prolongs or procrastinates the matters, the authority of the High Court remains in tact under section 44 of the Constitution to issue a direction to the authority to act in accordance with the law and rule and so is held by the Supreme Court in the case of "Farooq Ahmed Khan v. Shaukat Jan Buchh (1998 PLC (C.S.) 425). Similarly where the vested rights of a civil servant are likely to be adversely effected against law or rule by any proposed or threatened action of the departmental authority, the High Court can intervene under section 44 by issuing a writ of prohibition and so is held by the Supreme Court in the case of "Azad Jammu and Kashmir University v. Muhammad Malik and others" (1998 CLC 783).
12. Petitioner Abdul Qayyum being aggrieved of the procrastinating attitude and conduct of the respondents in not deciding his representation, has rightly invoked the jurisdiction of the High Court for a direction and in doing so, he has rightly put to challenge the provisions of the law barring remedy.
13. Reverting to the main thrust of the petitioners grievance, I will first dilate upon the provision of section 21 of the Civil Servants Act, 1976 and Service Appeal Rule of 1992.
14. The provisions of section 21 are regulatory and remedial in nature and an aggrieved civil servant is granted a right of appeal, review or representation through the provisions before the departmental authority. The provisions of the section prescribe the period of limitation for departmental remedy and further extend the remedy by guaranteeing the right of representation against an adverse order, if the right of review or appeal is not provided under rules, while section 4 of the Service Tribunal Act confers a right of appeal before the Service Tribunal, after availing the departmental remedy as visualized by section 21 of the Civil Servants Act. Different and distinct periods of limitation are provided under the sections of Service Tribunal Act and Civil Servant Act, for remedy before the Service Tribunal and departmental authority. The period of 30 days is allowed under section 4 of Service Tribunal Act to an aggrieved civil servant to file an appeal before the Tribunal and a period of 60 days is provided to prefer an appeal or representation to the departmental authority as regulated by the Rules of 1992. The remedy under section 21 of the Civil Servants Act is an administrative or departmental remedy, while under section 4 of the Service Tribunal Act, it is judicial remedy. The remedy under section 21 is not qualified, while it is qualified under section 4 of the Service Tribunal Act. Thus, there seems no conflict between section 21 of the Civil Servants Act, 1976 and Appeal Rules of 1992 with section 4 of the Service Tribunal Act or section 47 of the Constitution.
15. Under the appellate jurisdiction of the Tribunal which is regulated by section 4 of the Service Tribunal Act, 1975 a civil servant who is aggrieved by a final order passed by the departmental authority with respect to his terms and conditions may within 30 days of the communication of the order to him prefer an appeal to the Tribunal. This jurisdiction of the Tribunal to entertain an appeal of the aggrieved civil servant is firstly subjected to proviso (a) of section 4 under which an aggrieved civil servant cannot invoke the jurisdiction unless he avails administrative remedy of appeal, review or representation provided under Civil Servants Act, 1976 through rules made thereunder and that too, after 90 days of preferring of such appeal, application or representation, and secondly to proviso (b) of section 4, where under no appeal lies against the decision or order of the departmental authority determining the fitness of a person to be appointed to or to hold a particular post or to be promoted to the higher grade.
16. Dealing with the legal effect of proviso (a) of the section. Me Supreme Court in the case of "Asif Majid Khan and 3 others v. Tahir Ayyub Abbasi" (1994 PLC (C.S.) 1514 held as follows: "The legal effect of a proviso is well-known. A proviso controls, modifies and overrides the main section. Therefore, proviso (a) has to be given full effect. The relevant provision lays down that no appeal shall> lie unless two conditions are met. Firstly that departmental appeal or representation has been filed and secondly that a period of ninety days has elapsed. We see no difference between the two conditions. If an appeal is maintainable in case condition of waiting for ninety days has not been fulfilled then appeal must be treated to be valid if the other condition has been violated. The argument that appeal becomes mature if it comes up for preliminary hearing after the expire of ninety days has not impressed us. The matters of limitation and maintainability are refer able to the date on which a suit, appeal etc., is instituted and not the date on which it comes up for preliminary hearing. If this proposition is accepted then it would lead to anomalous results. If an appeal which has been filed before the expiry of waiting period comes up for hearing before the expiry of that period it will have to be discussed but if it comes up for hearing after the expiry of that period it will be treated to be maintainable. It means that the law will become subservient to the will of the Service Tribunal and will not operate on its own strength. On the other hand the phraseology of clause (a) is clear that an appeal lies only when a period of ninety days has elapsed. It means that it does not lie earlier. The language used by the law-maker is prohibitory in nature as it lays down that 'no appeal shall lie ' These are the words of command and seen in light of the importance of this provision are clearly mandatory in nature and its violation cannot be condoned. In our view a Service Tribunal is competent to hear only that appeal which has been filed after a period of ninety days has elapsed after the filing of application for review or representation. It is a well-known principle of law that when a statute confers jurisdiction upon a Tribunal of limited authority and statutory origin, the conditions and qualifications annexed to it must be strictly applied. In this connection we may refer to Atta Muhammad Qureshi v. The Settlement Commissioner, Lahore Division (PLD 1971 SC 61) wherein this principle was upheld by the Supreme Court of Pakistan. Although the Supreme Court of Pakistan in S.H.M. Rizvi's case, mentioned earlier, was not dealing with this proposition directly but the observations in para. 10, reproduced above. Lend strength to conclusions arrived at by us."
17. The commanding nature of the proviso unmistakably points that the remedy from the Service Tribunal cannot be obtained nor can the jurisdiction of the Tribunal be invoked, unless the rigorous provisions of departmental appeal, review and representation are resorted to and not only that, one has to wait for 90 days after filing such appeal, review or representation before preferring an appeal to the Service Tribunal. The functioning of the Tribunal is, thus, made dependent upon the order of the appellate authority or of the same authority to be passed in review or representation and practically debarring or depriving the aggrieved civil servant from availing the remedy before the Tribunal which alone is vested with the power to redress his grievance under section 47 of the Constitution. The purpose for which special and separate Tribunal is created for dealing with the grievance of the aggrieved civil servants expeditiously is. Thus, defeated. It in other words also means that unless the appellate authority in appeal or the same authority in review, passes the order, neither can the Service Tribunal function nor can a vexed employee get relief or justice, except in cases where the jurisdiction is provided to commence after 90 days of preferring of such appeal or review etc.
18. As stated above, the Tribunal is established under the provisions of the Constitution and is vested with the exclusive jurisdiction to adjudicate upon the matters relating to the terms and conditions of a civil servant regarding an order of which he feels aggrieved of. The jurisdiction of the Tribunal commences immediately when the cause of action arises to the civil servant and this is specifically spelt out from section 47 of the Constitution and the provisions of subsection (1) of section 4 of Service Tribunal Act as stated above. The limitation provided for the purpose is 30 days from the communication of such order to him. As for the final order visualizes by section 4 of the Service Tribunal Act is concerned the same is interpreted by the Supreme Court in the cases of "Shabbir Ahmed v. Azad Government and another 1997 PLC (C.S.) 478 and Ch. Muhammad Hussain v. Azad Government 1997 PLC (C.S.) 1047. In Shabbir Ahmed's case it is held in sub-para. (d) of para. 13 of the judgment that; "The phrase appearing in section 4(1) of the Service Tribunal Act. 'Whether original or appellate made by the departmental authority' cannot be interpreted to mean that an appeal against an order of a departmental authority can be preferred to the Service Tribunal even after the final decision of the departmental appeal, representation etc., because expression 'appeal' in the aforesaid phrase means that if a civil servant aggrieved by an original order prefers an appeal, review, etc., to such authority and the department accepts his appeal, review or representation etc., the other civil servant who may be aggrieved by such appellate order, is competent to prefer an appeal to the Service Tribunal after availing of the departmental remedy, if any, irrespective of the fact that the order was not an original order but an appellate order. Thus. The aforesaid expression in the main part of section 4(1) means that a civil servant can prefer an appeal against a final order whether " original or appellate' and not that a civil servant who has preferred an appeal, review, representation under proviso iai to section 4( 1 of the Service Tribunal Act should wait for final disposal of his appeal etc.
19. It is clear from the perusal of above that the moment final order is passed, a civil servant is vested with the right to challenge the order before the Tribunal established under the Constitution for having his grievance redressed.
20. Provisos (a) and (b) not only run counter to subsection (1) of section 4, but to the spirit of section 47 of Constitution and the purpose under lying the creation of the special Tribunal. The last words of subsection (1) of section 47 of the Constitution and subsection (2) of section 47 when read together, vividly state that the jurisdiction of the Tribunal to entertain an appeal filed by an aggrieved civil servant cannot be clogged by any condition, neither does the Constitution authorize the Legislature to abridge the powers of the Tribunal to entertain the grievance of a civil servant, nor can a right of aggrieved person be taken of by any law as the same is not provided under section 47 which authorizes the creation of Tribunal. It is celebrated principle of jurisprudence that where there is a wrong there is a remedy and once a person is wronged, his remedy cannot be barred, limited or abridged, curtailed or subjected to such conditions which amount to frustrating the remedy or making it impossible. Similarly, the golden principle of law that justice should not only be done but must appear to have been done is also belied if the instant, speedy and expeditious remedy , is barred. What the Constitution authorizes the Legislature to do is to establish a Tribunal by an act. For exercising the exclusive jurisdiction in F respect of the matters relating to the terms and conditions of the persons who are or have been in the service of Azad Kashmir. The jurisdiction of the Tribunal can be regulated by law under which it is created, but the same cannot be barred or curtailed. As under other laws e.g. Section 44 of the Constitution, if it is a case of writ, or under any other law under which an aggrieved person is entitled to invoke the jurisdiction of the Court or Tribunal, the right of the aggrieved person or power of the Court or Tribunal is not squeezed, the same cannot be done with respect to the matters relating to the civil servants.
' The contention of the Additional Advocate-General that remedy before the Tribunal is available after availing the departmental remedy. Hence the provisos of section 4 are not unconstitutional, cannot be accepted as the remedy as stated above is not only inadequate but against the rules of natural justice as well for the reasons that. The same authority is authorized to hear the representation and review which earlier passed the adverse order which means that the authority is made a Judge in his own case and appellate authority against his own order. It is not that only but the aggrieved civil servant is obliged to wait for 90 days after filing appeal, review or representation before him. The remedy is. Thus, not only inadequate but practically impossible.
Mere providing of alternate remedy is not sufficient it must he adequate. Efficacious, cheap, instant, sufficient, convenient, just and proper, meaningful and effective. No purpose and scheme is spelt out as to why the departmental authority should be approached instead of the Tribunal established under the authority of the Constitution which is vested with the exclusive jurisdiction for the purpose.
' In the case of the petitioner Abdul Qayyum, he has been arbitrarily dealt with as a representation filed by another person Sardar Khurshid Ahmed Khan against the same order made after the representation of the petitioner stands decided while the petitioner's representation remains indisposed, This also speaks of discrimination and requires intervention by this Court. There is plethora of case-law on the point that provisions of law restraining prohibiting, curtailing, barring or subjecting the right of appeal to conditions are unconstitutional and un-Islamic. I may refer here a few only i,e,:
(1) Registrar, Supreme Court of Pakistan v. Qazi Wali Muhammad (1997 SCMR 141);
(2) Pakistan through Secretary, Ministry of Defence v. The General Public (PLD 1989 SC 6);
(3) Military Estate Officer v. Assistant Commissioner-Collector (1997 CLC 556) and
(4) Messrs Chanab Cement Product (Pvt.j Ltd. v. Banking Tribunal, Lahore (PLD 1996 Lahore 672).
21. The provisos are against the provision of fundamental rights No, 15 of section 4 of the Constitution as well i,e, all State Subjects are equal before law and are entitled to equal protection of law". Under ordinary law of the land as well as under the Constitutional jurisdiction of the High Court and the Supreme Court an aggrieved person can immediately invoke the doors of the competent Court and get immediate temporary relief in case of in justice done to him, but a civil servant is denied the right and debarred from even invoking the jurisdiction of not only Civil Courts, but the Tribunal itself, which is meant for the purpose. The civil servants as a class are discriminated in their legal right of seeking redress against the oppressive order as against other aggrieved persons. A civil servant pledges himself to the service of the State and depends solely on earning from service, his livelihood and good name is wedded with the service, it is paradoxical that he is prohibited and denied access to the Courts of law and Tribunal in protecting him and seeking redress against the oppressive and adverse orders relating to his service. The persons in the service of the State employed in autonomous bodies and corporations, legislators, tax payers, farmers, landlords etc. Get immediate relief from Courts unhindered by any condition in case of any grievance, but the civil servants are left to the mercy of the same authority for seeking redress through review and representation etc., who, are under whose control and command, one is proceeded against. This rule is, thus, not only discriminatory, arbitrary, unjust, but against the rules of natural justice as well. We daily notice the cases of petty civil servants who are transferred ruthlessly and before one joins at a station, he receives a fresh order of transfer, but we are helpless to stop the same in view of exclusion of jurisdiction. This Court has in four consolidated writ petitions captioned as "Abdul Latif v. Azad Government and others", against transfer orders, decided on May 31, 1997, observed regarding the remedy under section 4 of the Service Tribunal Act as follows:-- "I have given a thoughtful consideration to the submissions made by the learned Advocates.
Though it is technically right as for as the phraseology of section 4 of the Service Tribunal Act is concerned, that the appeal before the Service Tribunal would lie only when a final order is passed by a departmental authority and that too after availing the departmental remedy which takes about 90 to 120 days for a civil servant to approach to the Service Tribunal, and by that time, it can be justifiably said that:" {{URDU TEXT}} "But the power of transfer and posting or removal of a civil servant, whatever the case may be, is a power vested in the departmental authority and any order inhibiting the departmental authority or restraining if from posting, transferring or removing a civil servant, howsoever, high the demand of justice may be to restrain it from doing so, the intervention would amount to usurpation of the jurisdiction of the departmental authority or the Service Tribunal, as the case may be, by the High Court, and violation of the above referred dictums of the Supreme Court which exclude the jurisdiction of the High Court in the matters. Adherence to the law laid down by the Supreme Court is the Constitutional obligation of the High Court in view of subsection (3) of section 42(A) and section 42-B of the Constitution."
'The remedy provided against an adverse order of the departmental authority, as discussed above, is no doubt available, but is neither adequate, nor speedy and at the same time not efficacious. It is impossible for an employee to avail the remedy before Service Tribunal in view of rapid, repeated and hasty orders, of transfers and posting by the executive/administrative authorities, at least for a civil servant who falls in the grace of his boss or those who become scapegoats for the favourites of the bosses. Even the choice of forum for redress of grievance in view of cumbersome procedural technicalities under such circumstances, is not less than to search for a needle in a bundle of hay."
"My words may not provide a remedy or give relief to the petitioners or to any other civil servant alleging the grievance as the petitioners have alleged in their petitions, but I may place it on record for those concerned with the affairs, if they ever have any time to pay heed to it, that justice is the fountain head of the duties of all the institutions of the State, any barricade, blockade or inhibition in its way shall poison the fountains of trust between the Subjects of the State, be it the case of a civil servant with the Government or an ordinary man with any functionary of the State. It is sacred duty of all the concerned to ensure that the golden good old saying that justice should not only be done but must appear to have been done, must come true at all times, and that too, before the heaven falls on a man, and it falls on a petty civil servant when he is arbitrarily dealt with. It is the excellent to have a giant's strength, but it is tyrannous to use it like a giant. It is the requirement of justice to blunt the bite of harsh lays deferring civil servants from obtaining relief from the Courts."
22. The civil servants run from pillar to post for redress but in vain in view of bar of jurisdiction of the Civil Courts and prohibition incorporated through the provisos under challenge. Similarly arbitrary postings and transfers, promotions of juniors on current charge and acting charge basis or in one's his own pay and grade over their seniors and orders of promotion styled as subject to confirmation by the board, has opened a flood gate of maladministration and unrest in service class in view of exclusion of jurisdiction of Civil Courts and prohibition on jurisdiction on Tribunal in entertaining the disputes regarding the service matters of the civil servants in view of provisos (a) and (b) of Service Tribunal Act.
23. While construing a statute of the above referred nature it is duty and obligation of a Court of justice to ignore the words which frustrate and hamper the justice and strike those down if simple ignoring do not advance the cause of justice. The Courts ought to endure to read words in a statute, which fill in the gap between the words of a statute and the requirements of justice. In doing so the Judge of a superior Court is filling the cracks in the legal instruments with dynamic approach which Legislature would have never left, had the hardship and injustice of this nature been then perceived. This approach is summum bonum of the institution of justice and its main object.
24. The superior Courts are authorised to go into the vires of a law and strike it down or ignore the same, if it is found against the Constitution or violate of Qur'an and Sunnah. This principle is followed and upheld by the Supreme Court of Azad Kashmir in the cases reported as State v.
Manzar Masud (1981 PCr.LJ 661); Nisar Ahmed v. State (1982 PCr.LJ 1287); Referring Authority v. Sardar Sikandar Hayat Khan PLD 1982 SC (AJ&K) 112 and Chief Secretary/Referring Authority, Azad Jammu and Kashmir Government v. Sardar Muhammad Abdul Qayyum Khan (PLD 1983 SC (AJ&K) 95.
25. It is not only the obligation but paramount duty of the Superior Courts to see that the provisions of the Constitution are not violated by any statute subordinate to the Constitution in view of the abovereferred authorities. It is for the Superior Courts to strike down the law which offends the Constitution.
26. In view of above, the provisos (a) and (b) attached to section 4 of the Service Tribunal Act, 1975 being contrary to the Constitution are declared as unconstitutional. All the three petitions are accordingly accepted without any order as to costs. The respondents in Petitions Nos. 1 and 2 above are directed to decide the representation of the petitioner dated 8-5-1989 within three months of the order.
27. Copy of the order shall be sent to Chairman, Service Tribunal Azad Jammu and Kashmir, Secretary, Services and General Administration and Secretary, Education for compliance.