1. BASHARAT AHMAD SHAIKH, J.---The High Court has dismissed the writ petition filed by Mst.
2. Khurshida Naz to challenge the order passed by the President of Azad Jammu and Kashmir under section 32 of the Establishment of the Office of Mohtasib (Ombudsman) in Azad Jammu and Kashmir Act, 1992 (the Act, for brevity) on 17th July, 1997. The order was passed on a representation filed by respondent No,6 Mst. Zaitoon Bibi. The President was pleased to restore the appointment of Zaitoon Bibi as teacher in the Education Department in place of appellant Khurshida Naz who was ordered to be relieved from service. Mst. Khurshida Naz has filed this appeal by leave of the Court.
3. The brief facts which are necessary for the disposal of the case are that respondent No,6 Mst.
4. Zaitoon Bibi filed a complaint before the learned Mohtasib in which she stated that she was appointed Primary Teacher on 1st January, 1996 where she performed her duties till 31st March, 1996. When she went to receive her salary from the relevant office she was told that her appointment had been cancelled because her name had been wrongly included in the merit list due to the fact that she passed her P.T.C. examination when the last date for receiving of applications had already expired. She also stated that the candidate who was appointed in her place was a Matriculate and was not a trained teacher. The learned Mohtasib inquired into the matter and reached the conclusion that the appointment of Mst. Zaitoon Bibi had been rightly terminated. The learned Mohtasib examined the service record of appellant Mst. Khurshida Naz and held that although she was not a trained teacher yet she was placed in a higher position in the merit list due to her educational qualification. The complaint was dismissed but the learned Mohtasib ordered that Mst. Zaitoon Bibi may be paid the salary for the period during which she actually served in the department.
5. Mst. Zaitoon Bibi filed representation before the President of Azad Jammu and Kashmir which was accepted by the President on 17th July,1997. The order was communicated to the department as well as Zaitoon Bibi. It was as follows: "The representation merits acceptance, therefore, the appointment of Zaitoon Bibi is restored.
6. Khurshida Naz is relieved. This order may be implemented". (Translated)
7. When the writ petition came up for preliminary hearing, it was argued on behalf of the writ petitioner that the order of the President was hit by the bar of jurisdiction contained in section 9(2) of the Act. The learned Judge who was seized with the case held that the bar of jurisdiction was not applicable in the case. Section 9(2) lays down that: "9(2) Notwithstanding anything contained in subsection (1), the Mohtasib shall not accept for investigation any complaint by or on behalf of a public servant or functionary concerning any matter relating to the agency in which he is, or has been working in respect of any personal grievance relating to his service therein."
8. The learned Judge in the-High Court recorded two reasons for holding that the bar reproduced above was not applicable. He firstly observed that the learned Mohtasib has not passed any recommendation for ousting Mst. Khurshida Naz from service and he only desired that outstanding amount of salary may be paid to respondent Mst. Zaitoon Bibi. The second reason may be reproduced: "So far as the order relating to the appointment of Zaitoon Bibi is concerned, no relief has been claimed by her before the Mohtasib or before the President on the basis of her previous service, if any. The bar applies only in the cases where &civil servant seeks a remedy in respect of his terms and conditions of service. Appointment on the basis of merit is not a question of terms and conditions of service."
9. Both these reasons are not sustainable. Under section 32 of the Act President of Azad Jammu and Kashmir has the power to pass such order on a representation as he may deem fit. Section 32 runs as follows: "32. Any person or agency aggrieved by a decision or order of the Mohtasib may, within thirty days of the decision or order, make a representation to the President, who may pass such order thereon as he may deem fit."
10. While passing an order under section 32, the President of Azad Jammu and Kashmir can only pass an order with reference to provisions of the Act and not beyond it. He is not authorised to exercise his powers which vest in him as the President under the Constitution or the general law. Therefore, the order passed by the President must be one which can be passed by the learned Mohtasib and must be within the limits of the Act. The President was pleased to "restore" Mst. Zaitoon Bibi to the post of teacher. He also was pleased to annul the appointment of appellant Mst. Khurshida Naz.
11. The bar of jurisdiction contained under subsection (2) of section 9 of the Act, which has been reproduced above, was clearly violated. In our view a case for admission of the writ petition had been clearly made out because a complaint cannot be accepted for investigation if it has been filed by a public servant concerning any agency in which he has been working in respect of any personal grievance relating to his service therein.
12. Ch. Muhammad Ibrahim Zia has rightly relied on unreported judgment of this Court in Civil Appeal No, 42 of 1998 titled Abdul Khalil v. Manzoor Ahmad and others decided on 17-6-1998 in which it was held as follows: "A bare reading of the abovementioned provision shows that a public servant or functionary who is or has been serving in an agency, is debarred from making a complaint against the vacancy in which he has been serving as such. It has been the case of the respondent that he has preferential right of appointment as a Forest Guard, because he had earlier been performing duties in the department in some other capacity. Obviously, the case is fully covered by restrictions imposed by the aforesaid provision and thus even otherwise the order passed by the Ombudsman was ab initio void."
13. Some other objections were also raised before us about the order passed by the President of Azad Jammu and Kashmir. It was contended that the order was passed without hearing the appellant and that no reasons were recorded which was a clear illegality. It was also pleaded that the order passed by the departmental authorities were perfectly valid and had been wrongly set aside.
14. These points need not be decided by this Court because the writ petition has been dismissed in limine and the case has to be sent back to the High Court for disposal in accordance with law. The High Court will consider all these points.
15. It follows that the writ petition was wrongly dismissed in limine. It raised legal points which made out a case for admission. The order of the High Court is, therefore, vacated and the writ petition is admitted to regular hearing. It shall be finally disposed of by the High Court in accordance with law.