1. ' BASHARAT AHMAD SHAIKH, J.---The appellant was appointed as Arabic Teacher on 15th of July, 1990. The appointment of the appellant was cancelled by the Minister of Education on 15th of August, 1990 and one Parveen Akhtar was appointed in her place. The appellant filed a representation before the Minister who cancelled his earlier order passed on 15th of August and restored the order of 15th of July by which the appointment of the appellant had been made. On 22nd of August, 1990 Divisional Director of Schools issued instructions to the District Education Officer (Female) Poonch that the appointment order of the appellant may be rescinded, but she may be adjusted if any other post was available. Thereafter a chain of orders followed. One of the orders was passed on the direction of the Prime Minister. The appellant then approached the Mohtasib of Azad Jammu and Kashmir who issued a direction on 31st of October, 1992 that the appellant may be adjusted against a post of Arabic Teacher. It is alleged by the appellant that the direction given by the Mohtasib was not implemented and she was asked to wait and was given assurance that she would be adjusted against the first available vacancy. On 13th of February, 1993 appointment of respondent No, 5 against a vacant post was ordered. The appellant made representations against that appointment but ultimately it was decided, under the directions of Minister of Education, to confirm the appointment of respondent No,5 vide order issued on 19th of November, 1996. It is alleged by the appellant that respondent No,5 did not fulfil the required qualifications and also that she was appointed without test and interview. Ultimately the appellant filed a writ petition in the High Court on 17th of February, 1997 in which he sought the relief that the Government as well as the concerned functionaries of the Education Department may be directed to appoint the appellant on permanent basis. She also prayed that she may be paid the arrears of pay for the period during which she was illegally kept out of service. Another prayer made in the writ petition was that the appointment order of respondent No,5 Ms. Shaukat Jan issued on 19th of November, 1996 may be declared to have been passed without lawful authority.
2. ' The writ petition came up for hearing before a learned Judge who dismissed the petition in limine after forming the view that the dispute raised in the writ petition related to terms and conditions of service in respect of which the jurisdiction of the High Court stood excluded.
3. ' The appellant has filed appeal with leave of the Court to challenge the view taken by the High Court. Sardar Rafique Mahmood Khan submitted that the learned Judge in the High Court was only partly right when it was observed by him that the jurisdiction of the High Court in matters relating to the terms and conditions of service stood excluded but the learned Judge omitted to notice that the aforesaid ouster only extends to those disputes which have been placed by law within the jurisdiction of the Service Tribunal. The learned counsel contended that an appeal before the Service Tribunal can only be filed by a civil servant and not by a person who was at a previous time a civil servant. He submitted that when the Service Tribunals Act was enforced in 1975 the definition of civil servant, given in section 2 of the Act included those persons who had previously been civil servants but the definition was substituted by the Legislative Assembly through AJK Service Tribunals (Amendment) Act 1993 (Act 1 of 1993). The amended definition is as follows:-- "Civil Servant" means a person who is appointed to any service or holds a civil post in service of Azad Jammu and Kashmir employed in connection with the affairs of the state, but does not include:-- (i)..............................................
4. (ii).................................................
5. (iii)................................................
6. ' Sardar Rafique Mahmood Khan pointed out that the term "Civil Servant" amended as aforesaid, is the same as in the Azad Jammu and Kashmir Civil Servants Act. The learned counsel submitted that the appellant remained in service of the Government for a brief period and is no longer in service since 19th of February, 199.1 and this fact has been duly mentioned in the order under appeal. It is therefore that the learned counsel for the appellant pleaded that the appellant was not entitled under section 4 of the Service Tribunals Act to file an appeal before the Service Tribunal with the result that jurisdiction of the High Court does not stand ousted, as has been held by the High Court.
7. ' On the other hand, appearing on behalf of the Government the learned Advocate-General Raja Shiraz Kayani, forcefully defended the order under appeal. He contended that the scheme of section 47 of the Azad Jammu and Kashmir Interim Constitution Act, which provides for the setting up of a Service Tribunal, is that when a Service Tribunal is established it would exercise exclusive jurisdiction in respect of matters relating to terms and conditions of persons who are or have been in the service of Azad Jammu and Kashmir. He contended that section 47 does not create any distinction between persons who are in the service of Azad Jammu and Kashmir and those who have been in such service. He explained that a civil servant who has subsequently ceased to be a civil servant and he wants to seek a relief from a Court of law, the dispute still remains to be about terms and conditions of service and that entitles him to move the Service Tribunal. He further explained that a dispute which is brought to a Court of law by a civil servant who has ceased to hold office is a continuation of his rights as a civil servant and he has locus standi to file appeal before the Service Tribunal.
8. ' Mr. M. Tabassum Aftab Alvi, who appeared for respondent No, 5, contended that the appellant was removed from service in 1991 while the amendment in the definition of the term "civil servant" in the Service Tribunals Act to exclude former "civil servants" from the definition was carried out in 1993. He submitted that for this reason the appellant in any case had to go to the Service Tribunal for redressal of an alleged legal injury which was caused in the year 1991.
9. ' A perusal of the writ petition filed in the High Court by the appellant shows that the relief claimed by the appellant was in two parts. In the first part the appellant prayed that direction may be issued to official respondents for her permanent absorption in service and for payment of salary for the period when she was out of office. In the second part it was prayed that the appointment order of respondent No,5 may be quashed. The reason in support of this prayer was incorporated in clause (d) of paragraph 15 of the writ petition. It will be useful to reproduce it:- "(d) that the appointment of Ms. Shaukat Jan has been made without recommendation of the Selection Committee and without test and interview while the petitioner has passed test and interview as is duly mentioned in the judgment of the Mohtasib. In this view of the matter the appointment of Ms. Shaukat Jan is patently illegal and she is occupying the post which comes within the definition of "public office" without legal authority and has deriving benefits therefrom which is not correct under any law. Therefore it is necessary that a notice may issue to her to show- cause under what authority of law she is occupying the post of teacher." (Translated).
10. The ground reproduced above and the second part of the prayer clause clearly shows that the writ petition filed by the appellant was a writ of quo warranto so far as it related to respondent No, 5 M/s. Shaukat Jan. It is well settled that the power of the High Court to issue a right of quo warranto under sub-clause (ii) of clause (b) of section 44(2) of the Azad Jammu and Kashmir Interim Constitution Act remains ineffective by promulgation of the Service Tribunals Act. This aspect of the matter was not adverted to by the learned Judge while dismissing the writ petition. In our view, if the attention of the learned Judge would have been drawn to this aspect of the matter, the learned Judge may not have dismissed the writ petition in limine to the extent it related to respondent No, 5.
11. ' We may now advert to the main question which arises for determination in this appeal, namely, whether a person who has ceased to be in service of Azad Jammu and Kashmir can move the Service Tribunal. Since main plank of the arguments of the learned Advocate-General rests on section 47 of the Azad Jammu and Kashmir Interim Constitution Act, the provisions of this section have to be analyzed. The relevant phraseology of section 47 is extracted below:- -47. (I) Notwithstanding anything herein before 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)
12. (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.
13. (3)
14. ' The use of word "may" in the opening words of subsection (1) shows that the set up of a Service Tribunal to deal with terms and conditions of service is not mandatory; it is optional, the option being left to the Legislative Assembly or the AJK Council, as the case may be. When this option is exercised in favour of establishing a Tribunal an Act has to be passed for creating a Tribunal. It is thus clear that when a Service Tribunal is established it does not owe its existence to section 47 of the Azad Jammu and Kashmir Interim Constitution Act but to the Act of Assembly which provides for establishment of a Service Tribunal. However when a Service Tribunal has been set up, subsection (2) of section 47 comes into play and has overriding effect over all other provisions of the Constitution Act with the result that jurisdiction of all other courts stands ousted. However this ouster is again 'subject to a condition specifically laid down in subsection (2) that the ouster of jurisdiction will be "in respect of any matter to which the jurisdiction of such Tribunal extended." For determining the question as to what are those matters to which the jurisdiction of the Tribunal extends we have again to advert to Service Tribunals Act which lays down what jurisdiction will be exercised by the Service Tribunal. Section 4 is the only section of the Service Tribunals Act in which the matters over which the Service Tribunal, would exercise jurisdiction are enumerated. The relevant portion of section 4 is as follows:- "4.(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:"
15. Section 4 clearly lays down that all matters relating to terms and conditions of service of civil servants are within the domain of the Service Tribunal but it is equally clear that appeal before the Service Tribunal can only be filed by a civil servant. It follows that a person who is not a civil servant cannot file such an appeal. The definition of the term "civil servant" refers only to a person who is actually appointed to a service or holds a civil post. A person who has ceased to hold an appointment is not included in the definition. As is the settled law, Courts cannot add to this definition any words which are not there.
16. ' It is also significant that definition of the term "civil servant" was modified on 15th of March , 1993.
17. The definition prior to 15th of March, 1993 was as follows:- "(b) Civil servant' means a person who is or who has been a member of civil service of Azad Jammu and Kashmir in connection with the affairs of the Government or who holds or has held a civil post in connection with the affairs of the Government but does not include:
(i) a person who is or who has been on.......................
18. (ii)
19. (iii)
20. However, on the aforesaid date, the definition was amended with the result that the words "or has been", stand deleted. This amendment also indicates the law-maker's conscious effort to exclude former civil servants from the category of those who can file appeal before the Service Tribunal against an order adversely affecting their terms and conditions of service.
21. ' The foregoing analysis of law shows that the appellant was not entitled to file appeal before the Service Tribunal and for that reason her writ petition before the High Court was maintainable.
22. Therefore, the order under appeal is vacated and case is remanded to the High Court. The writ petition shall be deemed to be pending before the High Court and shall be posted for preliminary arguments. We leave the parties to bear their respective costs.