1. BASHARAT AHMAD SHAIKH, J.--This appeal has been filed with leave of the Court by Habibullah Gannaie, a Deputy Secretary of the Government, to challenge judgment of the High Court dated 4th March, 1998 in Writ Petition No,142 of 1996 titled "Wajahat Rashid Beg v. Azad Jammu and Kashmir Government and 2 others" by which a learned Judge in the High Court declared that the writ petitioner Wajahat Rashid Beg is a regularly employed officer of the Government. A prohibition was also issued to restrain the Azad Government and other functionaries to abstain from passing any order prejudicial to the interests of the writ petitioner and aiming at the termination of his services. The appellant was not a party before the High Court. On the point of locus standi the claim 'of the appellant is that due to the declaration made by the High Court that Wajahat Rashid Beg is a regularly employed officer of the Government, seniority of the appellant has been adversely affected.
2. The relevant facts necessary for disposal of this appeal are that the respondent was appointed as Section Officer on ad hoc basis on 27th May, 1991. The order was subsequently modified on 27th February, 1992 whereby ad hoc appointment of the respondent was turned into regular appointment by the. Government in purported exercise of powers under section 22 of the Azad Jammu and Kashmir Civil Servants Act, 1976 read with rule 24 of the Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977. Through this order relevant departmental rules were relaxed and exemption was granted under rule 3(1) of the Public Service Commission Functions Rules, 1978. The order of appointment on ad hoc basis issued on 27th May, 1991 was amended so as to delete reference to ad hoc appointment and other conditions attached thereto. Four years later the respondent filed a writ petition on 26th August, 1996 in which he stated that the Government of Azad Jammu and Kashmir, through notification issued on 6th August, 1996, had constituted a Committee to look into the matters of ad hoc appointees as well as those appointed under section 22 of the Civil Servants Act, 1976. He stated that in the report submitted by the Services Department to the said Committee his name had been included in the list of persons who had been recruited under section 22 mentioned above. He further averred that the process had been initiated in light of the judgment of the Supreme Court reported as Azad Jammu and Kashmir Government and others v. Muhammad Younas Tahir and others (1994 CLC 2339) as well as another judgment of this Court titled Sh. Manzoor Ahmad v. Azad Government and another (1995 PLC (C.S.) 59). He challenged the contemplated action whereby the appointments under reference were being reviewed on various grounds stated in the writ petitidn. It was claimed by the respondent that he passed the test and interview conducted by the Public Service Commission. It was prayed that a writ of prohibition may kindly be issued restraining the respondents from terminating the service of the writ petition. The writ petition was admitted to regular hearing on 27th August, 1996 and a stay order was issued which remained in force till its disposal. In their written statement Azad Government of the State of Jammu and Kashmir and other functionaries raised three preliminary objections out of which one was that the dispute raised in the writ petition related to the terms and conditions of service which fell exclusively within the jurisdiction of the Service Tribunal and for that reason the petition was not maintainable. On merits it was stated that the writ petitioner did pass the written test held by the Public Service Commission, being at Serial No, 56 in order of merit, but he failed in the interview. This was a negation of the claim made by the writ petitioner that he had passed the test and interview conducted by the Public Service Commission. It was pleaded in the written statement that the judgments referred to in the writ petition, namely, the judgments in Sh. Manzoor Ahmad's case and Muhammad Younas Tahir's case were binding on all functionaries of the State and, therefore, the Government was under the duty to review the case of the respondent. The written statement was filed on 25th January, 1997 but for various reasons the writ petition could not be disposed of for quite some time. About a year later on 16th February, 1998 a letter signed by a Section Officer of Law Department was sent to the learned counsel engaged by the Government stating that the Prime Minister of Azad Jammu and Kashmir had accorded approval that a written statement may be filed in the High Court in which it may be stated that Wajahat Rashid Beg was regularly appointed as Section Officer in 1991 on the basis of having passed the Public Service Commission examination. Copy of this letter was sent to Registrar High Court. The learned Judge took note of this copy and decided the case on the basis of its contents. The Judge held that on the face of this judgment it was proved that the writ petitioner was a regularly appointed officer of the Government. It may be mentioned that written statement had already been filed and the learned counsel for the Government had not taken any step in pursuance of aforesaid letter when the case was decided.
3. Appellant Habibullah Gannaie became a regularly appointed Section Officer on 25th February, 1992 and with the induction of Wajahat Rashid Beg as regularly appointed Section Officer with effect from 28th May, 1991, the appellant has become junior to the respondent. This is the basis on which this appeal has been filed. This basis stands accepted by judgment of this Court in "Sh. Manzoor Ahmad v. Azad Government and another" 1995 PLC (C.S.) 59), which is a leading judgment of this Court on section 22 of the Civil Servants Act. The facts in that case were that Mrs. Nargis Shaheen, a Sub-Judge appointed on ad hoc basis, was absorbed in service on regular basis under section 22 of the Civil Servants Act without being selected in an open competition conducted by the Public Service Commission. Her permanent absorption made her senior to another Sub-Judge, Sh.
4. Manzoor Ahmad, who was already serving in the Judicial Department when she was appoitned on ad hoc basis. Sh. Manzoor Ahmad filed appeal before the Service Tribunal to challenge the appointment order by which Mrs. Nargis Shaheen was permanently absorbed. His locus standi rested on the fact that if the order was not vacated he would become junior to her. This ground was accepted by this Court to be 'Sufficient for challenging the absorption order which was ultimately set aside by this Court. Following the ratio in Sh.Manzoor Ahmad's case we hold that Habibullah Gannaie has locus standi to challenge the order passed by the High Court which is practically an order of permanent absorption of Wajahat Rashid Beg.
5. However it was vehemently contended by the learned counsel for respondent Wajahat Rashid Beg that Habibullah Gannaie had waived his right to challenge the appointment of Wajahat Rashid Beg because seniority list of Section Officers was issued by the Government on 26th August, 1993 in which the respondent was placed at serial No,18 while the appellant was assigned twenty first position in the list but the appellant did not challenge the order which means that he accepted the respondent as a regularly appointed Section Officer. This argument is met by the learned counsel for the appellant, Mr. M. Tabassum Aftab Alvi, by drawing our attention to an application submitted by the appellant to the Prime Minister of Azad Jammu and Kashmir on 13th September, 1994, Annexure 'Q', in which he stated that the respondent had illegally been declared as a regularly appointed Section Officer. He stated that in the Notification issued on 12th September, 1994 nine Section Officers were declared to be ad hoc appointees in light of the judgment of the Supreme Court but the name of Wajahat Rashid Beg was not. included in the list. It was prayed by him that the name of Wajahat Rashid Beg may be deleted from Serial No,18 of the seniority list and he may be promoted as Under Secretary, the post held by Wajahat Rashid Beg on the relevent date.
6. Annexure 'Q' is a certified copy issued by the Services Department and duly contains the seal of the Prime Minister's Secretariat indicating the receipt number and date etc. In our view it is clear that Habibullah Gannaie represented to the Government against the absorption of the respondent when this Court laid down the law in Sh. Manzoor Ahmad's case that no civil servant can be regularly appointed in exercise of powers under section 22 of the Civil Servants Act. This negates the assertion of the learned counsel for the respondents.
7. Sardar Rafique Mahmood Khan also referred us to an unattested document attached by him with concise statement as Annexure 'H'. It is notification issued on 11th January, 1976 which recites that the Prime Minister of Azad Jammu and Kashmir had rejected the application filed by Habibullah Gannaie to challenge the order, dated 12th September, 1994 as being barred by time. It is not understandable as to how the petition filed on 13th September, 1994 against the order passed on 12th September, 1994 (within twenty four hours) can be time-barred. Apparently there is some mistake which has not been explained. In any case since the doCument is unattested it is excluded from consideration. We may also observe that it is clear from the record that after the judgment in Sh. Manzoor Ahmad's case the Government had initiated the process of examining the cases of those persons who were prima facie hit by the dictum laid in that case and, therefore, the cases were not re-opened on a representation or appeal filed but a binding judgment of Supreme Court was being implemented. This process was stopped by the High Court at least to the extent of the respondent.
8. The learned counsel' for the appellant raised many other grounds to challenge the judgment under appeal and on each point he cited judgments of this Court as well as judgments of Supreme Court of Pakistan to support his case. In view of the order which we purpose to pass in the case it is not necessary to advert to these grounds. However, they.may be summarized for the sake of record as follows:-
(1) The High Court has illegally based its judgment on the letter written by the Government to its counsel for filing a written statement. The letter was not part of the pleadings and written statement had already been filed one year ago. The Court cannot go beyond pleadings of the parties.
(2) The respondent could not be deemed as regularly appointed without advice of the Public Service Commission as has been held by this Court in Sh. Manzoor Ahmad's case (supra) and Azad Jammu and Kashmir Government and others v. Muhammad Younas Tahir and others.
(3) The writ petition was not maintainable to protect an illegal order.
(4) The writ petitioner came to the Court with unclean hands by stating that he had passed the interview held by the Public Service Commission while the certified copy of the letter of Public Service Commission shows that he failed in the interview.
9. An important point which goes to the root of the case was raised by Mr. M. Tabassum Aftab Alvi that the order passed by the High Court clearly relates to the terms and conditions of service over which the High Court had no jurisdiction. It was contended that the judgment under appeal is hit by the bar, of the jurisdiction contained in section 47 of the Azad Jammu and Kashmir Interim Constitution Act. This point was included in the written statement filed by the Government in the High Court as a preliminary objection but was not raised by the appellant in the memorandum of appeal or in the concise statement. However, the point goes to the root of the case and it is settled practice of this Court that such points are permitted to be argued for the first time in arguments.
10. The point is based on Constitutional bat of jurisdiction contained in section 47 of the Azad Jammu and Kashmir Interim Constitution Act and it is the duty of this Court to see that an order which is violative of a Constitutional bar is set aside when challenged before this Court. In fact this Court has taken suo motu notice of violation of Constitutional provisions in many cases. We may refer to the judgment of this Court in Civil Appeal No, 52 of 1994 titled Ch. Muhammad Latif v. Azad Government of the State of J&K and another, decided on 10-10-1994 in which this point was not raised nor was permission sought to raise the point but this Court took up this point by way of suo motu notice and set aside the judgment of the High Court which related to terms and conditions of service. We may usefully quote the relevant para.: "In Azad Jammu and Kashmir a Service Tribunal stands duly constituted to deal with the service matters. It is provided in section 47 of the Azad Jammu and Kashmir Interim Constitution Act that when a Service Tribunal is established no other Court shall grant an injunction, make any order or entertain and proceedings in respect of any matter to which the jurisdiction of such Tribunal extends. The prayer made by the present appellant was that: 'It is, therefore, prayed that a writ of prohibition as envisaged in section 44 of the Interim Constitution Act, 1974, may kindly be issued against the respondents by issuing a prohibitory direction not to withdraw the Notification dated 7-2-1994. Any other relief admissible under law may also be granted.'
11. It is clearly amounted to seeking a declaration about the date of retirement of the appellant. Since retirement is one of the terms and conditions of service the High Court had no jurisdiction to entertain such a prayer.
12. This aspect of the matter does not find any mention in the judgment of the High Court. The learned Advocate-General also did not raise this point. However, since it is a question of jurisdiction we took suo motu notice of it and asked the learned counsel for the parties to assist us in this regard. After hearing the learned counsel we have formed the view which has been recorded above."
13. In the operative part of the judgment under appeal, which has been reproduced above, the learned Judge in the High Court has issued a declaration that Wajahat Rashid Beg is a regularly employed officer of the Government. He has also issued a prohibition that no order prejudicial to his interest aiming at termination of his service shall be passed by the Government. These directions clearly relate to terms and conditions of service over which the High Court has no jurisdiction. Reliance of Mr. M. Tabassum Aftab Alvi on Muhammad Razzaq v. Alam Din and others 1998 CLC 482, The Accountant-General and others v. Zaman Hussain Khan 1998 PLC (C.S.) 431, Raja Naveed Hussain Khan and others v. Qazi Khalil-urRehman and others 1994 SCR 267 and Dr. Muhammad Sarwar v. Dr. Muhamniad Sharif Chatter and others 1998 PLC (C.S.) 127 is well-placed.
14. Sardar Rafique Mahmood Khan could not show that the matter decided by the High Court did not relate to terms and conditions of service. Thus, the order passed by the High Court stands vitiated on this short ground leaving no need of examining the merits of the case.
15. Before parting with the case we observe that Sardar Rafique Mahmood Khan drew our attention to a document filed with the concise statement which purports to be a writing of appellant Habibullah Gannaie that he "withdraws" the application which he had filed in the High Court for becoming a party in the case titled Wajahat Rashid Beg v. Azad Governmthit and further that he had no objection to the seniority of Wajahat Rashid Beg. This document has been filed in this Court alongwith concise statement and we have not confronted it to the appellant but even if it is a genuine document it was explained by the learned counsel as to why the application was not filed in the High Court to which it pertained. He also did not explain as to how the principle of estoppel is applicable. Estoppel applies when one party makes a representation and the other party acts upon it but no such situation has been brought to our notice. In any case an agreement which restricts a person from enforcing his right to move a Court of law is void. We, therefore, find no merit in the contention and repel it.
16. During the pendency of the writ petition an application was moved in the High Court by the appellant on 26th March, 1997 that he may be impleaded as a party in the writ petition filed by Wajahat Rashid Beg. This application finds mention in the interim order, dated 31st March, 1997 but is not mentioned in the subsequent interim orders. When the case was called for hearing on 4th March, 1998 nobody appeared on behalf of Habibullah Gannaie. However, the arguments were heard and the judgment was written and announced on the same day. Immediately after that Habibullah Gannaie and his counsel appeared before the Judge and drew his attention to the application under reference. The learned Judge recorded a note to the judgment that the matter was not brought to the notice of the Court at the appropriate time, therefore, the application could not be disposed of. The learned Judge observed that the applicant, if so advised, may resort to appropriate proceedings separately. This note is also subject matter of the present appeal. In our view this aspect of the case has no bearing on the present appeal. This Court granted leave to Habibullah Gannaie to file appeal against the judgment and his locus stand has been recognized in the earlier part of this judgment.
17. As a consequence the judgment of the High Court is set aside as being without jurisdiction and it is ordered that its contents shall not be made use'of in any proceedings.