1. ' BASHARAT AHMAD SHAIKH, J.---A petition under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 was filed by appellant Muhammad Yaqoob Khan to challenge the authority under which respondent No,2 Abdul Rehman claimed to hold the office of Range Officer, Integrated Land Management. After a detailed analysis of the order under which respondent No,2 was posted to the disputed post, the High Court reached the conclusion that it was a simple order of transfer in which matter the remedy was only available before the Service Tribunal. Leave was granted to the appellant when it was argued on his behalf that the petition filed by him in the High Court was one of quo warranto and that the High Court had wrongly held that the matter in dispute related to terms and conditions of service over which the Service Tribunal enjoyed exclusive jurisdiction.
2. ' The appellant was a regularly promoted Range Officer (B-16) and when the dispute arose he was performing functions as Range Officer Integrated Land Management Division, Domel Range Muzaffarabad. Respondent No,2 Abdul Rehman at the relevant time was Deputy Forest Ranger (B- 9) and was performing functions as Deputy Ranger, Jhelum Valley Division Muzaffarabad. On 27th November, 1996 Secretary Forestry passed an order by which he transferred the appellant from the post of Range Officer Integrated Land Management Domel to the post of Range Officer Soil Conservation Range, Jhelum Valley Division Muzaffarabad. By the same order respondent No,2 Abdul Rehman, Deputy Ranger (B-9) Jhelum Valley Division, was transferred and posted to Integrated Land Management, Domel Range Muzaffarabad. The order was subsequently amended with retrospective effect so as to read as follows:- ' "Mr. Abdul Rehman, Deputy Ranger (B-9) Jhelum Valley Division is transferred and posted as Incharge Integrated Land Management, Domel Range, Muzaffarabad."
3. ' In the writ petition filed by the appellant he made the following prayer:- ' "Therefore, it is humbly prayed that the respondent No,2 may kindly by asked to show that under what legal authority he claims to hold the office of the Range Officer and the respondent No,1 also be asked to show-cause under what legal authority he has issued order dated 27-11-1996. Any other appropriate relief this Hon'ble Court deem just and proper may kindly be granted."
4. ' It was contended by Ch. Muhammad Ibrahim Zia that the petition filed in the High Court was one of quo warranto because in the prayer clause reproduced above the appellant did not ask any relief for himself. In the body of the writ petition also no relief was claimed for the appellant himself and he only asserted that respondent No,2 could not legally hold the disputed post. In para. 7 of the writ petition it was stated that respondents (Secretary Forests and Abdul Rehman) were trying to usurp the public office of Range Officer without any lawful authority. It is clear from the contents of the writ petition that the appellant did not challenge that part of the order by which the appellant himself had been transferred to another place.
5. ' The High Court has accepted the objection of the respondents that the impugned order was a transfer order which related to terms and conditions of service. It has also been held that even if the contention of the petitioner is upheld that the Secretary Forests was not competent to transfer the respondent, the matter would still remain out of the High Court's Jurisdiction because an illegal order of transfer could be assailed only before the Service Tribunal. A perusal of the judgment of the High Court show that the learned Judge seized with the case did not notice the fact that the appellant had filed a writ of quo warranto, which fact unmistakably emerges from the writ petition as discussed above. Similarly we are of the view that the learned Judge fell in error in holding that transfer order of the respondent could be challenged before the Service Tribunal by the appellant.
6. These errors of law are due to the fact that the learned Judge failed to advert to the basic condition contained in section 4 of the Service Tribunal Act that a civil servant can only file appeal before the Service Tribunal if he is aggrieved in respect of his own terms and conditions of service and not otherwise. The relevant part of section 4 is as follows:- "4. 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 month of the establishment of the appropriate Tribunal, whichever is later, prefer an appeal to the Tribunal.
7. Provided that; ' The phraseology of section 4 reproduced above shows that if a civil servant feels aggrieved by a final order made by a departmental authority which adversely effects his terms and conditions of service he can challenge that order before the Service Tribunal. If he is not aggrieved by any final order he cannot file such an appeal. The use of word "aggrieved" shows that a civil servant can file appeal for removal of his own grievance and not for any other purpose. Legal position is clear that if a civil servant is, for instance, promoted and other civil servant feels aggrieved by his promotion he can challenge the promotion and can seek a relief for himself. This is a sharp contrast to the provision relating to the writ of quo warranto contained in section 44 of the Azad Jammu and Kashmir Interim Constitution Act 1974 under which any person, who may not be aggrieved or may not even be a citizen, can lay information before the High Court that a person is holding or purporting to hold a public office without authority of law. In a writ of quo warranto a civil servant does not claim any relief for himself. He only seeks to put an end to usurpation of a public office if it is being held without authority of law. The petition filed by the appellant was, therefore, maintainable. In fact this proposition stands concluded by previous judgments of this Court. In Muhammad Latif Khan v. Aliul Hussain Bukhari and 41' others (1993 PLC (C.S.) 297 this point was discussed in detail. We may reproduce a portion of the judgment.
8. ' "From the foregoing extract it is clear that the writ petition which had been filed by the forty forest officers, who are respondents before us, was one of quo warranto and did not relate to any violation of the terms and conditions of the petitioners. While deciding this point the learned Judge in the High Court observed that under section 4 of the Service Tribunals Act an appeal can be filed by a civil servant against the final order in respect of any of the terms and conditions of his service and that the petitioners in the present case did not challenge the order under reference on the ground that their terms and conditions of service had been violated by it. We find force in this observation. The scope of an appeal before the Service Tribunal is vastly distinct and different from the application for a writ of quo warranto envisaged by section 44 of the Interim Constitution Act. In an appeal under section 4 of the Service Tribunals Act if a civil servant is aggrieved by a final order passed by a departmental authority he can file an appeal before the Service Tribunal, but the overriding condition is that it should relate to any of the terms and conditions of that civil servant. It is implicit in an appeal before the Service Tribunal that the appellant has to seek a relief for himself.
9. On the other hand a writ of quo warranto can be filed by any person without being aggrieved of any order. A writ of quo warranto is sought to get a public office vacated if it can be proved before the High Court that it was being illegally occupied or usurped. During the elaborate arguments on this point Mr. Muhammad Akram Khan did not contend that the enactment of section 4 of the Service Tribunals Act has the effect of abrogating the powers of the High Court to issue a writ of quo warranto as long as section 4 is in force. We may observe that section 47 of the Interim Constitution Act does have the effect that as long as section 4 is in existence the powers under section 44 cannot be exercised by the High Court but this is subject to the conditions that matter must relate to terms and conditions of the service of a civil servant who is an appellant before the Service Tribunal and seeks annulment of an order adversely effecting of his service rights. The host of authorities cited by Mr. M Akram Khan in support of his contentions lay down the same proposition but do not lay down that the power of issuing a writ of quo warranto is not available to the High Court if the appointment of a civil servant is challenged. Mr. Muhammad Akram cited the following cases ' The judgment in Muhammad Latif case was recently followed in Civil Appeal No,98 of 1998 titled Raja Muhammad Azad Khan v. Vice-Chancellor Azad Jammu and Kashmir University and another.
10. The facts of the case were that Raja Muhammad Azad Khan was transferred from the post of Registrar of Azad Jammu and Kashmir University and a civil servant was brought to succeed him.
11. Raja Muhammad Azad Khan filed a writ petition which was partly of certiorari to challenge his transfer and partly writ of quo warranto in respect of the appointment of the civil servant who was appointed in this place. The High Court dismissed the writ petition in limine on the ground that the writ petitioner had not availed the remedy of appeal before the Syndicate as provided by section 38 of the Azad Jammu and Kashmir University Act which had been earlier held by this Court as an adequate remedy. Appeal was filed in this Court by Raja Muhammad Azad Khan. The writ of certiorari was held to be rightly dismissed because remedy by way of appeal to the Syndicate was available but it was held by this Court that appeal under section 38 did not create any hurdle in the way of filing a writ of quo warranto. This Court observed as follows:- "The difference between the writ of certiorari/Mandamus and a writ of quo warranto is that in the former an appellant may seek a relief for himself while in the later writ, a relater does not seek any relief for himself. That is the reason why it is not a condition precedent for filing writ of quo warranto that the appellant should be an aggrieved person. In quo warranto appellant cannot seek any relief for himself and he only has to challenge the authority under which a respondent is holding a public office. The question whether appeal under section 38 creates a hurdle in the way of appellant to file a writ of quo warranto is best answered by the section itself. It runs as follows:- "38. An appeal to, and review by, the Syndicate.--(1) Where an order is passed punishing any officer (Other than the Vice-Chancellor), teacher or other employee of the University or altering or interpreting to his disadvantage prescribed terms or conditions of his service, he shall, where the order is passed by the Vice-Chancellor or any other officer or teacher of the University, have the right to appeal to the Syndicate, against the order, and; where the order is. Made by the Syndicate, have the right to appeal to that Authority for review of that order.
(2) The appeal or application for review shall be submitted to the Vice-Chancellor who shall lay it before the Syndicate with his views.
12. ' The phraseology of the provision of law reproduced above shows that an appeal can be filed if an officer has been punished or his terms and conditions of service have been allotted or interpreted to his disadvantages. Two things flow from it. Firstly, that appeal can be filed by a person against whom an adverse order has been passed and, secondly, that appeal lies to get an adverse order vacated. Section 38 does not bestow the right to challenge another person's appointment on the ground that it is without legal authority. It follows that a prayer which can be made in a writ of quo warranto cannot be made in an appeal under section 38. This point has been decided in a previous judgment of this Court, relied upon by the learned counsel for the appellant, reported as Muhammad Latif Khan v. Aliul Hussain Baukhari, D.C.F., Muzaffarrabad and 41 others (1993 PLC (CD)
13. 297)
14. ' Another observation made in Raja Muhammad Azad's case seems to be relevant here. We have already noted that the appellant in that case challenged the authority of a successor to hold the post of Registrar which tended to show that the aforementioned appointee was aggrieved by his transfer but this was not treated as hindrance in the way of filing a writ of quo warranto. In the present case the position is the same. Since a writ of quo warranto can be filed by any person, it follows, that even an aggrieved person, can file a writ of quo warranto. The only condition is that the petitioner in a writ of quo warranto. Cannot get any relief for himself. The conclusion, therefore, is that the view taken by the High Court is not sustainable and we have no hesitation in vacating it.
15. The correct legal position is that the quo warranto writ filed by the appellant was maintainable in the High Court.
16. ' The learned counsel for the respondents, Raja Muhammad Hanif Khan, cited an unreported case titled Azad Government of the State of Jammu and Kashmir through Chief Secretary, Muzaffarabad v. Ch. Muhammad Aslam (Civil Appeal No,53 of 1993, decided on 13-10-1993), in which this Court accepted an appeal filed by the Azad Government against the judgment of the High Court and held that respondent in that case, Ch. Muhammad Aslam, D.F.O. Integrated Land Management Division, could challenge the order of his transfer in the High Court because transfer was one of the terms and conditions of service. In that case the writ was filed by a civil servant to challenge his own transfer order which, as explained in the earlier part of the judgment, was within exclusive jurisdiction of the service Tribunal. In the present case the appellant filed a writ of quo warranto against transfer of the respondent and not his own transfer. The judgment clearly illustrates the difference between a writ of quo warranto and a writ of mandamus/certiorari.
17. ' Now we come to the merits of the case which, in our opinion, do not pose any difficulty at all because it is a beaten track, Respondent No,2 was Deputy Ranger in B-9 and he was "Transferred and posted" as Incharge of Domel Range of Integrated Land Management. The incharge of a range is a Ranger which post carries B-16. The post was previously held by the appellant who, as already mentioned, was admittedly in B-16 There is a long chain of judgements of this Court in which it has been authoritatively laid down that in the service laws of Azad Jammu and Kashmir there is no concept of transferring permanently or temporarily, a civil servant to a post carrying higher grade in his own pay and scale. Some of the judgments on the point are as follows:-
(1) Mubasher-ul-Haque v. Azad Government of Jammu and Kashmir and two others (1991 PLC (CS)
18. 426).
(2) Muhammad Rashid Choudhry v. Chairman AKLASCA and others (1993 PLC (CS) 1201).
(3) Doctor Khawaja Mushtaq Ahmad v. Azad Government and others (1995 PLC (CS) 410).
(4) Raja Muhammad Azad Khan v. Vice-Chancellor Azad Jammu and Kashmir University and another (Civil Appeal No,98 of 1998, decided on 10-7-1998) .
19. ' We may reproduce the relevant portion of the judgment of Khawaja Mushtaq Ahmad which is as follows:- ' "We may also observe that in the service laws in force in Azad Jammu and Kashmir there is no concept of appointing, permanently or temporarily, a civil servant to a post carrying higher grade in his own pay and scale. According to section 8 of the Azad Jammu and Kashmir Civil Servants Act, 1976 'Promotion' to a post carrying higher grade with the accepted connotation of 'posting' and 'transfer' is moving to a post in the same grade to which a civil servant belongs. Under section 10 of the Civil Servants Act a civil servant appointed to a post or grade shall be entitled in accordance with the rules to the pay sanctioned for such post or grade. It is yet to be seen whether a civil servant can be denied the pay sanctioned for such post if he works against it. The AJ&K Civil Servants (Appointment and Conditions of Service) Rules provide only three modes by which a person can be appointed to a post: (a) by promotion, (b) by transfer and (c) by Initial recruitment.
20. The impugned order does not conform to any of these modes. In the said rules there is also a provision for appointment.
(a) on acting charge basis (Rule 10-A).
(b) on current charge basis (Rule 10-B) and.
(c) on officiating basis (Rule 13).
21. ' The Impugned order is not covered by these provisions.
22. ' If a civil servant is appointed to a post carrying higher grade he is elevated in position and exercises higher powers and many persons carrying the same pay and scale serve under him and in some cases senior persons also can be posted to work under him.
23. ' We have made similar observations in Mubashar-ul-Haq's case, referred to above, and also in Muhammad Rashid v. Chairman AKLASC (Civil Appeal No,78 of 1992, decided on 28-4-1993).
24. ' According to rule 27 of the AKLASC Employees Service Rules in case all matters not expressly provided in those rules members of the service shall be governed by appropriate rules/orders of the Government. Therefore, the Civil Servants Act and Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977 are applicable to the Corporation. The concept of promotion as envisaged in section 89 of the Civil Servants Act is that promotion is to a post carrying higher grade while the accepted connotation of ' Transfer' is the shifting of an official to an equal post. There is no concept in the service laws of transferring a civil servant to post carrying higher grade and that also for an indefinite period. According to the scheme of the service law if a vacancy is to be filled by promotion it is to be filled through the relevant Promotion Board.
25. However, if a vacancy cannot be filled immediately civil servants can be appointed to higher posts pending completion of the formalities in accordance with the rules of 1977 mentioned above. These rules provide for appointment on acting charge basis (Rule 10-A), appointment on current charge basis (rule 10-B), and appointment by promotion on officiating basis (rule 13). In rule 10-B there is also a reference to appointment on ad hoc basis. If the rules already in force are found wanting in any situation the proper course is that the Government should amend the rules. The prevalent practice of ordering civil servants to posts carrying higher grade should be brought to an end because sometime the senior persons are left to work in the same position while their juniors enjoy higher status and enhanced powers without adjudication for their suitability for promotion by the Promotion Board."
26. ' The order in the present case in respect of respondent No,2 is also an order by which respondent No,2. Being a holder of B-9 post, was made Incharge of a range which charge can be held by a Ranger in B-16. This is a clear violation of the judgments referred to above which renders the impugned order passed in respect of the respondent 'No,2 as one without lawful authority. It " follows that the respondent No,2 has no legal authority to hold the post of Incharge of Domel Range of Integrated Land Management Muzaffarbad and we hold accordingly.
27. ' Consequently the appeal is accepted and the order of the High Court is vacated. The writ petition filed by the appellant is accordingly accepted in the terms indicated above.