' BASHARAT AHMAD SHAIKH, J.---This appeal, by leave of the Court, has been filed to challenge judgment of the High Court by which a writ petition filed by respondent Azfar Yaseen was accepted and the High Court quashed a show-cause, notice issued to respondent Azfar Yaseen seeking explanation as to why he may not be relieved from service of Azad Kashmir Logging and Sawmill Corporation on the ground that his appointment was made in violation of the relevant service rules. Appellant, Shaheen Asad and respondent Azfar Yaseen both at the relevant time were Assistant Managers (Finance and Accounts) of the Azad Kashmir Logging and Sawmill Corporation.
Shaheen Asad, who was not before the High Court, was granted leave to appeal as she claimed that Azfar Yaseen, who was only holder of a B.Com degree and had been initially appointed on ad hoc basis without possessing the necessary qualification for appointment as Assistant Manager (Finance and Accounts) had become permanent employee of the Corporation due to the judgment of the. High Court which made him automatically senior to Shaheen Asad. This gave caus-:, of action to the appellant. She further stated that Azfar Yaseen on the basis of the judgment of the High Court, had been promoted as Deputy Manager (Finance and Accounts) in B-18 which had adversely affected her service rights.
2. Facts of the case are that the Cabinet took a decision on 18th August, 1996 that all civil servants appointed in derogation of law shall be removed from service. This decision was subsequently made applicable to statutory corporation vide Cabinet decision of 1st September, 1996. In pursuance of this decision a show-cause notice was issued to the respondent, Azfar Yaseen, on 1st December 1996 by the Managing Director AKLAS Corporation in which it was inter alia stated that the appointment of Azfar Yaseen suffered- from the following legal defects--
(i) The post held by the respondent was not advertised which was a A violation of AKLASC Employees Service Rules, 1977; and
(ii) Afzaf Yaseen did not possess the minimum qualification for the post of Assistant Manager (Finance and Accounts).
' The respondent was called upon to show-cause as to why he may not be relieved from service due to the defects mentioned above in light of the decision of the Cabinet. He was given fourteen days for filing his reply and was also informed that he would also be given personal hearing. As stated above he filed a writ in the High Court which has been accepted and the show-cause notice has been quashed.
3. Show-cause notices were issued not only to the respondent but also to a number of other employees. The grounds on which the proceedings were initiated, may be noted. Azad Jammu and Kashmir Logging and Sawmill Corporation Employees Service Rules, 1977 contain a provision that initial recruitment to the Corporation service shall be made if the candidate fulfills the qualification and experience prescribed for the post. Entry No,39 in the schedule attached with the said rules lays down that a person with I.C.M.A. Inter/M.Com/M.B.A. (Finance) with three years experience will be qualified to be appointed as Assistant Manager (Finance and Accounts). The respondent admittedly does not hold the required degree. He is B.Com.
4. Apart from that the appellant's contention is that Rule 27 of the said rules provides as follows--- "27. General Rules.---In all matters not expressly provided in these rules members of the service shall be governed by appropriate rules/orders of the Government."
' The Government rules which are applicable to all the civil servants in respect of appointment and conditions of service are called the Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977. It is provided in rule 17 that-- "Initial appointment to all posts. In Grades 1 and above except those filled under rule 16, shall be made on the basis of examination or test to be held by the appropriate. Committee or the Board as .The case may be after advertisement of the vacancies in newspapers, or in the manner to be determined by the Governments."
5. However, as stated, while making appointment of respondent Azfar Yaseen the post to which he was appointed was not advertised. He was appointed as Accountant/Assistant Manager (Finance and Accounts) B-17 on ad hoc basis on 17th January, 1990 and his appointment was confirmed by the Chairman of the Corporation on 20th June, 1991. It may be mentioned that the appointing authority of the post of Assistant Manager (Finance and Accounts) as laid down in the Rules, is Board of Directors and not the Chairman.
6. The High Court has inter alia held that when Azad Jammu and Kashmir AKLASC Employees Service Rules, 1977 were framed by the Board of Directors the Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977 had not come into force with the result that the latter set of rules was not applicable to the employees of the Corporation with reference to rule 27 of the Corporation Rules reproduced above. The High Court has held that for that reason the provision in the Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977 that a post will be advertised was not applicable.
7.In view of the order which we propose to pass in this appeal it is not necessary to give a finding on this point but it may be observed that during the arguments before us it has been proved that the High Court was wrong in holding that the Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977 were not applicable to the employees of the AKLAS Corporation because when rule 27 of the AKLASC Employees Service Rules laid down that Government rules will be applicable to the employees of the Corporation at that time Civil Servants (Appointment and Conditions of Service) Rule, 1977 had not been enforced and were therefore, not applicable to Corporation employees. Mr. Abdul Rashid Abbasi, the learned counsel for the appellant, was able to show that the finding given by the High Court is factually incorrect. Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977 were made on 8th May, 1977 through a notification issued on that date while the AKLASC Employees Service Rules were framed subsequently on 28th June, 1977. These dates have not been contested by Raja Muhammad Hanif Khan, the learned counsel for respondent Azfar Yaseeft. The result which follows is that the High Court was clearly in error in holding that advertising a post under the Corporation was not a legal requirement.
8. The other two defects, namely, that the appellant did not possess the required degree also remain unrebutted. It is also uncontested that Azfar Yaseen was appointed by the Managing Director while the appointingauthority of the post to which he was appointed was the Board of Directors. Similarly, his confirmation was also ordered by the Chairman and not the Corporation.
The High Court has not given any finding on these two defects. However, the High Court has based its judgment on the ground that the order of appointment of the respondent had created vested right and the Corporation had no competence to recall or cancel it.
9. We have first to attend to a preliminary objection raised by Raja Muhammad Hanif Khan, the learned counsel for respondent Azfar Yaseen, that Shaheen Asad cannot file appeal due to the following two reasons:--
(1) Her own appointment as Assistant Manager is illegal; and
(2) That seniority list was previously circulated in which Azfar Yaseen was shown senior to the appellant but she did not raise any objection which means that she acquiesced in the seniority of the respondent.
10. It was contended by Raja Muhammad Hanif Khan that this Court has held in Rashid Hussain v.
Gul Afsar Khan and three others (1999 SCR 435) that one who comes to the Court to seek equity must come with clean hands. The learned counsel submitted that the ratio of the aforesaid judgment is that if an employee challenges the appointment of another employee relief cannot be granted to him if it is found that his own appointment is illegal. We have perused the judgment but we find that no such rule of law has been laid down in that judgment. Facts of the case are entirely different. One Gul Afsar was appointed as a Coolie. The services of as many as eighteen Coolies, including those of Gul Afsar, were terminated on the ground that their appointments had been ordered after the schedule for election of the Legislative Assembly had been announced which was a violation of Government Order based on a Cabinet decision. Writ petition filed by Gul Afsar was accepted on the ground that the Cabinet had no authority to terminate the services of a Coolie and also because Gul Afsar was not given any notice before his removal from service. One Rashid Hussain who had meanwhile been appointed in place of Gul Afsar filed appeal in this Court. This Court formed the view that no rule or law had been brought to the notice of the Court that appointments after announcement of election schedule were illegal and no order had been brought to our notice that the Government had imposed ban on recruitment during the period under reference. Thus, the Court reached the conclusion that removal of Gul Afsar was illegal.
However, it was found that the initial appointment of Gul Afsar had been made without advertising the post which is a mandatory requirement of rule 1.7 of the Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977. Therefore, this Court set aside the judgment of High Court by which Gul Afsar had been restored to service on the ground that an illegal appointment cannot be restored in exercise of writ jurisdiction. The relevant portion of the judgment is as follows:-- "It is well-settled principle of law that an illegal appointment cannot be restored in exercise of writ jurisdiction because one who comes to the Court to seek equity must come with clean hands.
' In number of cases this Court declined to restore to office persons who were wrongly removed from service but their own appointments were illegal. The recent judgment on this point was delivered in Civil Appeal No,36 of 1999 titled. Raja Abdul Razzaq v. Dil Khuram Abbasi and other decided on 7-4-1999."
' In the present case the appellant is not seeking restoration to service but is objecting to the respondent's appointment.
11. In our opinion the objections raised about the appointment of the appellant Shaheen Asad are not such which may disentitle the appellant from filing appeal. We find from the record that the post held by Shaheen Asad was duly advertised and she was selected in an open competition but the contention of Raja Muhammad Hanif Khan is that the post held by the appellant could only be filled in on the advice of the Public Service Commission. This contention had no force. During the hearing of this case a Full Bench was constituted to decide the question whether officers and employees of the Azad Kashmir Logging and Sawmill Corporation were civil servants so that their cases should go to the Service Tribunal. It was held in the judgment rendered on 14th April, 2000 that officers and employees of the AKLAS Corporation are not civil servants within the meaning of Service Tribunal Act. In our considered view officers of the AKLAS Corporation are not civil servants even for the purposes of the Civil Servants Act as well as the Public Service Commission Act. Under section 7 of the Public Service Commission Act the Commission has to conduct test and examination for recruitment to the civil services of Azad Jammu and Kashmir and other specified posts in connection with the affairs of the Government Service in AKLAS Corporation is not civil service of Azad Jammu and Kashmir and the post in the Corporation are not related to affairs of the Government. Recruitment in the Corporation is to be made in accordance with the Azad Kashmir Logging and Swamill Corporation Act and rules made thereunder which envisage that recruitment will be made through the Selection Board constituted within the Corporation.
12. It was then contended by the learned, counsel for the respondent that the appellant did not hold the qualification as Assistant Manager. He contended that the required qualification for the post of Assistant Manager Finance and Accounts is I.C.M.A. (Inter)/M.Com/M.B.A. (Finance) with three years' experience. He relied on the following decision of the University Grants Commission:-- "Resolved that Master degree in Business Education is of the same level as M.Com/MBA but the fields of the study are different. The employer may determine suitability."
' In light of this decision it was contended that equivalence granted in the decision reproduced above is conditional and it is the employer who has to decide whether holder of M.B.E. Degree will be suitable for a particular post for which the prescribed qualification is M.B.A. It was contended that no such determination was made. This objection is met by the learned counsel for the appellant by relying on the latest decision of the University Grants Commission taken in 1983:-- "After examining the details of the Courses offered in M.B.E. Vis-a-vis M.Com/M.B.A., it is to add that the courses related to professional areas in M.Com/M.B.A. Are also offered in the M.B.E. However, additional courses in the field of Education and methodology of teaching are also offered in the M.B.E. Degree. As such, M.B.E., degree holders can also be considered eligible for competing for the posts where the required qualification has been prescribed as M.B.A."
' Being the latest decision, it conclusively resolves the matter in favour of the appellant.
13. Now we advert to the objection based on the principle of acquiescence. The objection was that a seniority list had been duly circulated in which respondent was shown senior to the appellant but she did not raise any objection which means that she had acquiesced in the seniority of the respondent. We find that this objection has no substance. Even now the appellant has not challenged the seniority of the respondent but has challenged the order of the High Court which was passed in respect of the legality of the respondent's appointment. In the present appeal question of seniority has been mentioned by the appellant to prove locus standi by saying that the appellant would gain in seniority if respondent is removed from service. It is not her case that she is senior to the respondent. The question about legality of the appointment of respondent was reopened by the Corporation under policy decision of the Cabinet. This fresh cause of action entitles the appellant to challenge the judgment of the High Court. In this connection we may refer to judgment of this Court in Civil Appeal No,25 of 1999, decided on 21st December, 1999 tilted Ch. Muhammad Irfan v. Azad Government Jammu and Kashmir and 19 others which judgment is relevant to decide the objection raised on behalf of the respondent. Facts of the precedent case were that a seniority list was published in 1982 in which appellant in the aforementioned civil appeal, Ch. Muhammad Irfan, was shown senior to the respondents in the said appeal. Another seniority list was issued in 1986 which superseded the list issued in 1982. In the new list appellant in the precedent case was placed below the respondents but Ch. Muhammad Irfan did not challenge the new seniority list. However, yet another order was issued in which the list of 1986 was cancelled and it was declared that list issued in 1982 was to be treated as final. Once again list of 1982 was cancelled and that of 1986 was revived. In the list of 1986 Ch. Muhammad Irfan had been placed junior to the respondents he filed a representation and then he approached the Service Tribunal by filing appeal which was dismissed for, inter alia, the reason that his appeal was not maintainable on the ground that seniority list of 1986 had been previously in force till 28th of July, 1993 but Ch. Muhammad Irfan did not challenge it. It was held that after fresh revival of the list of 1986 the appellant was debarred from challenging the said list. On appeal this Court set aside the order of the Service Tribunal holding that:- ' it may be observed that vide Government Notification, dated 6th May, 1995, the seniority list of 1986 was revived and thus, a fresh cause of action accrued to the appellant who challenged the same vide his review petition duly submitted before the Government on 6th July, 1995."
' Following the ratio of Ch. Muhammad Irfan case the objection under reference is overruled.
14. We have mentioned the legal objections which have been raised relating to the appointment of respondent Azfar Yaseen. We find that there is weight in the objections but we would not like to decide them because of the reason that we find great weight in another argument raised on behalf of the appellant that the High Court fell in error in entertaining and deciding a writ petition which had been filed against a show-cause notice. It was argued that the High Court should have allowed the Corporation to conclude the proceedings which it had initiated in respect of the legality of the appointment letter of the respondent as well as a large number of other employees before exercising its jurisdiction under the Interim Constitution Act. In support of this contention the learned counsel for the appellant relied on some case law to which we advert. In Azad Jammu and Kashmir University and another v. Muhammad Malik and others (1998 CLC 783) it was held that if a notice is issued without lawful authority it can be termed "as act done" or "proceedings taken" within the meaning of sub-clause (ii) of clause (a) of section 44 of the Azad Jammu and Kashmir Interim Constitution Act and a declaration that it is of no legal effect can be given. In Raja Naveed Hussain Khan and others v. Qazi Khalil-ur-Rehman and others (1994 SCR 267) this Court-observed as follows:-- "Another disturbing fact is that, as already noticed the Government had pleaded that the Prime Minister had ordered the re-examination of the case which had been sent to the Special Assistant but the High Court virtually stopped the Prime Minister from re-examining the matter and directed that the recommendations/decisions which had already taken may be given effect to. It is clear, therefore, that the High Court has deprived the Prime Minister from exercising his legal right to give full consideration to a matter involving rights of the civil servants before according his approval."
15. In our view a show-cause notice can be challenged in a writ petition only if it has been issued without lawful authority but it cannot be so challenged if it has been issued by a competent Authority. Through a show-cause notice adverse material is brought to the notice of the concerned person without previously determining the finality of that material and the person likely to be adversely affected is given an opportunity to explain his position. The writ jurisdiction conferred on the High Court is supervisory in nature under which the High Court can issued a declaration that an act done or proceedings taken is without lawful authority and of no legal effect. The High Court is also authorized to issue a writ of prohibition to stop a person from performing an act which that person is not allowed by law to do. The High Court has no jurisdiction to transfer the proceedings pending before an executive or judicial officer and decide it itself. While exercising writ jurisdiction the High Court cannot substitute its own opinion for the opinion of an administrative officer. We may quote from the book Fundamental Law of Pakistan by Mr. A.K. Brohi in which the learned author summarised the case law on the point as follows:-- "The writ jurisdiction being transcendent in character is of an extensive remedial potency: but on this account alone, its exercise by the High Courts should be resorted to in appropriate cases to maintain the rule of law and give guidance to all the authorities functioning under the Constitution or set up under any of its provisions in the matter of enforcing rights ordinary or fundamental, of persons who, by means of appropriate proceedings, are able to invoke the aid of this benign jurisdiction. It cannot be emphasized too often that although the jurisdiction of High Court to interfere under Article 170 with the inferior tribunals is practically unfettered, the writ jurisdiction is not intended to provide an alternate method of redress."
16. We may also quote from Justice Muhammad Munir's commentary on Constitution of Islamic Republic of Pakistan, 1996 Edition. The learned author observed as follows:-- "Doctrine of exhaustion of statutory remedy.----It has been an established rule of practice with the High Court that where a right or liability is created by a statute which itself prescribes the procedure for enforcing that right of liability, resort must be had to that particular procedure before invoking the discretionary jurisdiction of the High Court under the present Article. The High Court, in the absence of exceptional circumstances, will decline to exercise its discretionary jurisdiction under the Article until all the statutory remedies are exhausted including administrative appeals or representation and more so when the controversy involves disputed questions of fact or appreciation of evidence. This doctrine is applied even where that statutory remedy is a reference to High Court itself on a question of law."
17. In the present case the Cabinet decided that all illegal appointments shall be reviewed. This decision was based on judgments of the superior Courts of Azad Jammu and Kashmir. The Corporation has the power to terminate an illegal appointment but the High Court has quashed the show-cause notice without allowing the Corporation to decide the matter. It has been placed on the record that all cases in which similar show-cause notices were issued the Corporation accepted the explanation given by the employees of the Corporation and held that their appointment did not suffer from any legal defect. It is clear, therefore, that the Corporation acted with open mind. Therefore, the interference of the High Court was not warranted by law.
18. In these circumstances the judgment of the High Court is not sustainable. Therefore, appeal has to be accepted and the matter shall be left to the Corporation to decide it after receiving the reply of respondent Azfar Yaseen. We, therefore, accept the appeal and set aside the judgment of the High Court and order the dismissal of the writ petition filed by respondent Azfar Yaseen who shall now file his reply to the show-cause notice so that the matter can be finalised by the competent .Authority in the Corporation.