1. ' BASHARAT AHMAD SHAIKH, J.---Respondents Kaneez Akhtar, Zainab-un-Nisa, Naz Parveen, Rukhsana Latif and Zohra Begum, who are officers of the School Cadre, filed a writ petition in the High Court on 19th June, 1998 in which they claimed that they stood promoted and appointed in their own pay and scale in 1994 but their regular promotion was still to be made on the basis of respective Selection Boards. However they were serving in their own pay and scale on higher posts carrying senior scale. On the basis of pressure of a group of officers the petitioners were going to be reverted causing serious injury. It was prayed that a direction may be issued to the Government and the other functionaries of the Education Department to refer the case of promotion of the petitioners and meanwhile they may be prohibited from passing any adverse orders till the suitability of the petitioners is adjudged by the Selection Board. The writ petition was admitted to regular hearing and status quo was ordered.
2. ' The appellants were not arrayed as respondents. It is claimed by them that although they are senior but the admission order as well as the stay order has already affected their service rights.
3. They have therefore filed this appeal with leave of the Court.
4. ' The first question which arises in this case is whether the High Court has any jurisdiction to take cognizance of the writ petition filed by the respondents. It was vehemently contended by Sardar Rafique Mahmood Khan that there is no adverse order and therefore the appeal cannot be filed before the Service Tribunal which makes the writ petition maintainable. He relied on the following cases:-- ' In Muhammad Naseer Jahangiri and 13 others v. Abdus Sami Khan and another (1997 PLC (C.S.)
5. 1115) it was held that the Service Tribunal has been given no authority to directly order implementation of the orders of the Government functionaries.
6. ' In AJ&K Government and others v. Mujahid Hussain Naqvi (1996 SCR 305) a direction was given in exercise of writ jurisdiction that the Prime Minister shall re-consider the review petition of the respondent afresh.
7. ' In Mrs. Iffat Ara Saleem v. Sardar Muhammad Khrushid and 36 others (1996 SCR 254) it was held that the High Court can issue a direction in its writ jurisdiction to the departmental authority for the disposal of a case if the High Court is satisfied that the departmental authority is procrastinating. It was further held that the High Court has no jurisdiction to hear the dispute relating to terms and conditions of service.
8. ' In an unreported judgment titled Ch. Muhammad Amin v. Mehboob-ur-Rehman and 2 others (Civil Appeal No.35 of 1994, decided on 9-7-1994) a direction given by the High Court to Secretary Agriculture that he should forward the panel to the Selection Board within thirty days was upheld by this Court except with the modification that the period of thirty days was changed to "a reasonable time".
9. ' It has been vehemently contended by Raja Muhammad Hanif Khan, the learned counsel for the appellant, in support of the appeal that the respondents are holding higher posts in direct violation of the judgments of this Court in Muhammad Rashid Chaudhry v. Chairman AKLASC and others (1995 PLC (C.S.) 1201) and Doctor Khawaja Mushtaq Ahmad v. Azad Government and others (1995 PLC (C.S.) 410) in which it has been authoritatively laid down that a civil servant cannot be posted to a higher grade and all such appointments are illegal. He referred us to an averment in para. 8 of the writ petition filed in the High Court which is as follows:-- ' "8. That on the basis of the pressure of a group of officers, the respondents, instead of referring the matter to the Selection Board, are going to revert the petitioners which is a serious injury to the service rights of the petitioners as well as a serious violation of the rule of merit."
10. ' It was contended that it is clear from the averment made above that efforts have been made by aggrieved persons to convince the Government that the writ petitioners are holding higher posts in violation of the law laid down by this Court. It was further contended that appellant No.5 is in Grade-19 but is working under respondent No.1 who is in Grade-18.
11. ' A dispute relating to terms and conditions of service cannot be brought to the High Court in presence of a Service Tribunal as laid down in section 47 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 but in Muhammad Amin's case direction for sending the cases of promotion of civil servants to the Selection Board was upheld by this Court. In that case this direction did not amount to directly or indirectly deciding question of promotion of any individual civil servant. In the present case same direction is prayed for. Admission of a writ petition, therefore, cannot be vacated at this stage. The High Court will consider the objection of maintainability of the writ petition if and when raised by the appellants and shall decide the matter in accordance with law keeping in view the judgment given in Muhammad Amin's case.
12. ' However, it is clearly stated in para. 8 of the writ petition that the writ petitioners are going to be reverted. In the prayer clause the High Court was requested that the respondents may be prohibited from doing so. It clearly means that the writ petitioners wanted the High Court to prohibit their reversion. This part of the writ petition is clearly hit by section 47 of the Azad Jammu and Kashmir Interim Constitution Act because promotion, reversion, posting and transfer are decidedly terms and conditions of civil servants over which the High Court has no jurisdiction. The High Court by issuing a stay order has passed an order prohibited by section 47 which clearly lays down that no Court shall grant an injunction, make any order or entertain any proceedings in respect of any matter to which the jurisdiction of such Administrative Court or Tribunal extends.
13. ' It has been rightly contended by learned counsel for the appellants, Raja Muhammad Hanif Khan, that, although cognizant of it, the High Court has passed the order which perpetuates the usurpation of office by the writ petitioners in direct violation of the law laid down by this Court in Muhammad Rashid Choudhary and Dr. Khawaja Mushtaq Ahmad's cases referred above that no civil servant can be posted to a post carrying higher grade. The argument given by Raja Muhammad Hanif Khan has force.
14. ' It will be appropriate if we reproduce the injunction issued by the High Court:-- ' There is also an application for maintenance of status quo which is supported by no affidavit. The writ petition is admitted for regular hearing. It is, therefore, ordered that the status quo prevailing at present shall be maintained till further orders subject to objections by the respondents.........................................................................................................................
15. ' The only reason recorded for maintaining status quo was that the writ petition had been admitted to regular hearing and that there was an affidavit in support of the petitioner. Raja Muhammad Hanif Khan, on this point, relied on an unreported judgment of this Court titled Kh. Manzoor Ahmad Butt and 2 others v. Sardar Muhammad Khurshid and 4 others (Civil Appeal No.78 of 1998, decided on 15-7-1998). In that case, coming to this Court from the Service Tribunal it was held as follows:-- "The order which has been reproduced shows that the only reason which prevailed with the learned Chairman of the Service Tribunal in suspending the transfer order was the fact that the appeal had been admitted to regular hearing. No other reason has been recorded by the learned Chairman of the Tribunal. It may be pointed out that admission of an appeal to regular hearing does not automatically lead to a stay order. For issuing a stay order there must be a prima facie good case and the factors of balance of convenience and irreparable loss should be considered.
16. However the learned Chairman of the Tribunal did not address himself to these points."
17. ' The position is exactly the same as in the present case. Before parting with the case we have to dispose of an objection raised by the learned counsel for the respondents, Sardar Rafique Mahmood Khan, that the appellants did not file appeal against the orders passed in favour of the respondents in 1994 under which they have been holding senior posts. This objection is only raised during arguments and is not supported by any proof. However, from the other side it is argued that this contention is contradicted by para. 8 of the writ petition reproduced above. The orders passed in 1994 were in any case purely temporary in nature and were stopgap arrangement. If a person does not challenge stop-gap arrangement, his right is not waived. It may be pointed out that judgments in Muhammad Rashid Chaudhry and Dr. Khawaja Mushtaq Ahmed cases had not been published when the respondents were appointed to hold higher posts. Apart from that the appellants have not filed the writ petition; it is the respondents who have come to the Court for permanent absorption. The appellant has every right to defend his rights. It may also be observed that the fact that they have been holding senior posts for four years in violation of law on temporary basis does not confer any right on the respondents. They are, if at all, being transferred by the Government and not demoted. In any case the order passed by the High Court gives a fresh cause of action to the appellants.
18. ' In light of the foregoing discussion, the portion of the order under appeal by which the status quo was ordered to be maintained is vacated and the application for interim relief moved by the respondents in the High Court is dismissed. The admission order stays undisturbed.
19. ' The appeal is partly accepted as indicated above. No orders as to the costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.