MUHAMMAD YUNUS SURAKHVI, J.---This appeal by way of leave of the Court, has been directed against the judgment of the High Court passed on 12-2-108, whereby the writ petition filed by respondent No,1 was accepted.
2. The brief facts of the case are that Muhammad Hussain, respondent No,1, was holding the post Headmaster in the year 1975, when he applied for the appointment as Lecturer in English. After the recommendations of the Public Service Commission he was appointed as Lecturer. Subsequently he was given Pay Scale 18 vide notification, dated 28-3-1992. He filed an appeal for being appointed as Headmaster which was accepted and he was also given seniority from 19-3-1976, vide notification, dated. 22-7-1997, which was revoked by the Government order, dated 18-10-1997.
However, on 3-1-1998, the notification, dated 22-7-1997 was again restored. According to the appellants when they came to know about the restoration of the aforesaid notification which gives seniority to respondent No,1 over them, they filed a representation to the Government on 23-8-1997.
When the respondent came to know about the representation, he filed writ petition in the High Court seeking direction to the concerned authorities for the implementation of the notification, dated 22-7-1997, so as to illegally get the seniority against the appellants and some others before the representation which was pending before the Government, was decided. The appellants filed an application in the High Court for their impleadment as party in the writ petition but their prayer was rejected. However, they were allowed by the Court to file the statement of facts. The present appeal has been filed assailing the order of the High Court, dated 12-2-1998, for the implementation of the order, dated 22-7-1997, on the following grounds:--
(i) that the High Court has illegally rejected the application of the appellants for being impleaded as party in the writ petition;
(ii) that on the one hand the High Court allowed the appellants to file statement of facts but on the other rejected their prayers for being impleaded as party thus the procedure adopted by the High Court was contrary and violative of the provisions contained in the Civil Procedure Code.
(iii) that according to the appellants the respondent had preferred a review petition before the Government on 8-2-1976, but he did not file any appeal within 120 days of the filing of the review before the Service Tribunal. Therefore, after failing to approach to the proper forum, the writ petition was not only belated but it was otherwise incompetent on the ground that no writ could lie for the redress of a grievance pertaining to terms and conditions of service of a civil servant.
(iv) that various other persons, whose seniority was to be adversely effected, including the appellants were not impleaded as party in the writ petition as such the writ petition should have been dismissed on this ground;
(v) that the order of the High Court is self-contradictory as on one hand the High Court has directed the Government to decide the matter of the seniority of the contesting parties within 45 days failing which it was directed to implement the order, dated 22-7-1997; and
(vi) that the relief given by the High Court travels beyond the scope of the writ petition in view of the fact that prayer for deciding the question of inter se seniority between the parties was not prayed for by the respondents.
3. In support of his above stated contentions Mr. Ghulam Mustafa Mughal, the learned counsel for the appellants, submitted that vide the impugned order, the High Court was not competent to issue the direction to the respondent which clearly relates to the tertns and conditions of a civil servant. In the alternative it was contended by the learned counsel for the appellants that if the direction given by the High Court be considered as a valid one then it was enjoined upon the High Court to provide the appellants an opportunity of being heard by submitting their written statements and then to issue a direction that without being influenced by the order of the High Court, the respondent should have approached the proper forum i,e,. the Service Tribunal for the redressal of his grievance. In support of his contentions the learned counsel for the appellants cited reported cases titled Farooq Ahmed Khan and 3 others v. Shoukat Jan Bauch and 2 others. (1998 PLC (C.S.) 425) Azad Government and others v. Germane Rights Commission and others (1999 MLD 160); Maulana Ghulam-ud-Din v. AJK Government and 2 others (1998 PLC (C.S.) 1364); Raja Naveed Hussain Khan and others v. Qazi Khalil-ur-Rehman and others (1994 SCR 267); Dr. Muhammad Sarwar v. Dr. Muhammad Sharif Chatter and others (1998 PLC (C.S.) 127); Ch. Sadiq Ali v. The Chief Secretary AJK and another (PLD 1996 SC (AJ&K) 29 = 1996 PLC (C.S.) 337); Alam Din v. Chairman, Municipal Committee, Mirpur and 3 others (1992 CLC 1854), and an unreported case of this Court titled Rakhshanda Kokab and others v. Kaneez Akhtar and others (Civil Appeal No,100 of 1998, decided on 15-10-1998).
4. On the other hand Ch. Muhammad Ibrahim Zia, the learned counsel for respondent No,1, controverted the arguments raised by the learned counsel for the appellants. The learned counsel submitted- that the High Court was fully competent to issue direction to respondents for implementing the Government notification, dated 22-7-1997, and the said direction had nothing to do with the terms and conditions and seniority of civil servants. The learned counsel also maintained that the appellants were duly provided with an opportunity of filing their statement of facts and in the light of pleadings of the parties the said direction was issued by the High Court. The direction issued by the High Court, according to the learned counsel for the respondent No,1, could not have adversely affected the rights of the appellants. The learned counsel for the respondent No,1 in support of his submissions cited reported cases titled Farooq Ahmed Khan and 3 others v.
Shaukat Jan Bauch and 2 others (1998 PLC (C.S.) 425) and Sh. Manzoor Ahmed v. Azad Government and another (1995 PLC (C.S.) 59).
5. After hearing the respective contentions of the learned counsel for the parties and perusing the record, it may be stated that the High Court vide the order impugned issued directions to the respondents for the implementation of the order of the Government, dated 22-7-1997, against which a representation had been filed by the appellants before the departmental authority on the basis of which the order was cancelled on 18-10-1997, but the same was again restored vide notification, dated 3-1-1998. Against the aforesaid order a review was filed before the departmental authority, however, the respondent before the disposal of the review petition filed by the appellants elected to file a writ petition. whereby a direction was issued for the implementation of the order, dated 22-7-1997. The grouse of the appellants precisely is that the respondent should have approached the proper forum, i,e, the Service Tribunal, after the lapse of 120 days which he failed to do. Moreover, the civil servants who were promoted during the intervening period were not arrayed as a party nor right of hearing was provided to the appellants. Therefore, the notification sought to be implemented was void ab initio. The appellant's grievance is that by ordering the implementation of the order, dated 22-7-1997, the seniority of respondent has been virtually determined which adversely affects the seniority rights of the appellants. So, the controversy between the parties was relating to terms and conditions of the service of the contesting parties, therefore, the jurisdiction of the High Court stood ousted in view of bar contained in subsection (2) of section 47 of the Interim Constitution Act. Had the direction of the High Court been to the effect that any matter pending before any lower Tribunal or departmental authority should be decided expeditiously, the position would have been different, but the High Court in the instant case on the one hand issued directions to official respondents for implementing the order of the Government, whereby respondent No,1 would become senior to the appellants by all means and on the other High Court refused to array the appellants as party in the proceedings. In our view the aforesaid approach made by the High Court is not only self-contradictory but is also violative of law as the same purely relates to determine the seniority of the contesting parties.
6. Without adverting to the question of determining the seniority of the parties the law stands settled that the matter which involves terms and conditions of a civil servant the jurisdiction of the High Court stands totally ousted in view of bar contained in subsection (2), of section 47 of the Interim Constitution Act. The finding, thus, recorded by the High Court being in contravention of the dictum laid down by this Court in various cases relied by the learned counsel for the appellants is bad in law which is hereby set aside. In our view there is a marked distinction between those cases in which the High Court merely issues a direction to the Government functionaries or the lower Tribunals to decide a case within a certain time and those cases in which a direction is given on the basis of which a certain civil servant becomes senior to those who challenge his seniority.
7.The cases cited by the learned counsel for the respondents are clearly distinguishable. However, one of these cases namely the case reported as Farooq Ahmed han and 3 others v. Shoukat Jan Bauch and 2 others (1998 PLC (C.S.) 425) needs to be discussed. I that case the High Court had not given a direction for implementation of an order relating to terms and conditions of service but had passed the following order:-- 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."
This direction was upheld by this Court in view of the stand taken on behalf of Shaukat Jan Bauch's counsel which will be clear if we reproduce the relevant portion of the judgment of this Court.
"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.'
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 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.'
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."
Thus, in the precedent case, the direction given by the High Court did not decide any term or condition. In the present case, the direction given by the High Court has virtually decided the dispute of seniority between the parties.
8. From the above discussion it is clear that the dispute in the present case is within the jurisdictional competence of the Service Tribunal and outside the realm of the High Court while exercising its jurisdiction in a writ petition. Therefore, the judgment of the High Court is vacated without any order as to costs.