' KHAWAJA MUHAMMAD SAEED, J.---Answering respondents Nos.1 to 8 are serving in various senior grades of the Law Department of Azad Kashmir Government. Initially Syed Shakir Shah filed a writ petition in the High Court, whereby he craved for a direction to the Government to consider him for promotion to the post of BPS-20 in the common pool cadre strength and other post for which he was eligible. He also requested for a direction to the Government to implement the order of the Prime Minister and promote him to BPS-20. Later on respondents Nos.2 to 7 applied to the Court to be impleaded in the line of petitioner's. Their application was allowed. In the writ petition they claimed that Law Department is a' part of Secretariat whose business like other Departments of the Secretariat is conducted under the Rules of Business, 1985. According to them the highly placed employees of this Department were deprived of further promotion as the post of Law Secretary was filled in through transfer of District and Sessions Judges despite the fact that some of the employees of this Department at the relevant time were serving in BPS-20. They quoted the example of Syed Muhammad Akram Shah and Syed Atta Mohi-ud-Din Qadri, respondent No12, who were in BPS-20 when offences from judicial department were appointed as Law Secretary through transfer. According to these petitioners the Government has constituted a common pool cadre strength vide Government Notification, dated 6th June, 1996 for the promotion of BPS-19 officers who have got very limited scope of promotion in their parent Department. Under this notification 40 per cent seats have been reserved for those officers who are serving in Secretariat, whereas remaining 40 per cent quota has been reserved for officers of other departments and 20 per cent for the Management Group. Their grievance was that the officers belonging to Law Department are not treated a part of Secretariar services as such their merits have never been considered in past for promotion against common pool cadre strength posts, under the mistaken belief that Law Department is not the part of Secretariat. They, in the light of these facts, filed a writ petition in the High Court seeking mandamus for the enforcement of the Government notifications by treating Law Department as part of the Government Secretariat.
2. Written statement was filed by the Additional Advocate-General on behalf of respondents Nos.1 and 2 in which the dismissal of the writ petition was craved on two preliminary objections. Firstly the petitioners have to no locus standi to file the writ petition and secondly that matter relates to' the terms and conditions of service of the petitioners, (now respondents 1 to 8 before this Court) therefore, was outside the jurisdictional competence of the High Court. In para. 9 of the written statement a new term was introduced that Law Secretariat is not the part of General Secretariat.
This term was used perhaps due to the reason that Law Department is treated as Technical Department and for certain posts special qualification is laid down, for those two wanted their induction in this department of the Government against such post. The learned Judge in the High Court allowed the petition and granted following relief to the respondents 1 to 8:- "As upshot of the above discussion, the petition is allowed and a writ of mandamus is hereby issued directing that the officers of the Azad Jammu and Kashmir Law Justice and Parliamentary Affairs Department shall be considered by the appropriate Selection Authority for promotion against the posts, falling in the Secretatiat or in the common pool like officers of other departments of Secretariat, for which such officers have got the requisite qualifications, experience and training."
3. This judgment of the High Court was assailed initially by nine Additional Secretaries of the Civil Secretariat, through petition for leave to appeal. Later on Azad Government also filed petition for leave to appeal through the Secretary, Services and General Administration Department. Both these petitions were consolidated and were granted through a common order of leave.
4. Mr. Farooq Hussain Kashmiri, the learned counsel for the Azad Government, argued that the matter relates to the terms and conditions of the civil servants serving in different departments of the 'Civil Secretariat, therefore, any dispute relating to their terms and conditions can be competently and exclusively resolved by the Service Tribunal. The respondents, herein, therefore, should have invoked the appellate jurisdiction of the Service Tribunal for the redressal of their 'grievance. He further argued that in the writ petition those officers who were serving in General Secretariat were necessary parties, and without impleading them in the line of defendants, the writ petition was liable to be dismissed summarily n this technical ground. He relied on Azad Jammu and Kashmir Government through Chief Secretary Muzaffarabad and another v. Syed Zaman Ali Shah and 3 others (PLD 1991 SC (AJ&K) 57) and Habibullah Gannaie v. Wajahat Rashid Baig and 3 others (1999 PLC (C.S.) 615) in support of his contention.
5. Mr. Imdad Ali Malik, the learned counsel appearing on behalf of appellants Muhaammad Nazir Chaudhry and 8 others, argued that separate rules have been framed for the Law Department.
According to these rules the right of induction in service and promotion from one post to another has been laid down in such a way that only a person serving in this department can avail promotion. The Rules of Business should have been interpreted by keeping in view, the separate rules framed for the Law Department. The judgment being silent on the subject, is liable to be set aside. He relied on Nusrat Fatima v. Azad Government of the State of Jammu and Kashhmir and 2 others (PLD 1985 SC ,(AJ&K) 93). He also pressed that the relevant Government orders were passed in the year 1996, whereas writ petition was filed in the year 2000, therefore, the writ hit by the mischief of laches was and is liable to be dismissed on this ground. He relied on Azad Government of the State of Jammu and Kashmir v. Haji Summandar Khan and others [1995 SCR 259). In this case the writ petitions were filed after five to eight months without submitting any explanation for delay. These were, therefore, held to be hit by laches. This judgment is distinguishable and has nothing common with the facts of the present case. In this case some land was acquired through award for the purpose of constructing University Campus under the Azad Jammu and Kashmir Acquisition of Land (Housing and Development Scheme) Ordinance, 1981. The price of the land was fixed at Rs,20,000 per Kanal. Except those petitioners who later on filed writ petitions; remaining landowners challenged the award through appeals before the Additional Commissioner Revenue under the provisions of the above referred Ordinance but their appeals were dismissed. Thereafter, they filed writ petitions in the High Court. The High Court consolidated their writ petitions and accepted the same vide judgment dated 4-7-1992 by holding that the restriction imposed on the payment of compensation being violative of fundamental rights was ab inito void. They were allowed compensation at the rate of Rs,40.000 per. Kanal. After the decision of these petitions the respondents, owners, also filed writ petitions in the High Court and demanded compensation at the rate of Rs,40,000 per Kanal on the basis of the decision given 'by the High Court in earlier filed writ petitions by other landowners. Their writ was allowed by a learned Judge in the High Court but on appeal the decision was set aside on the ground that they availed the remedy before the High Court after wasting 5 to 8 months and that too without submitting any explanation for such delay.
In that case the judgment of the Collector Land Acquisition was assailed before the High Court through which the price of the land under the provisions of the Ordinance was fixed by him at Rs,20,000 per Kanal. In the present case the answering respondents have not challenged the legality of the Government notifications. They have requested that they being civil servants of the Secretariat, service are eligible to be considered under these Government orders for promotion against vacant posts in BPS-20 and against posts placed in common pool cadre strength alongwith other employees of the Secretariat service. According to the learned counsel two posts of BPS-20 have been given to the Law Department exclusively. While elaborating his viewpoint he argued that Additional Secretary of the Law Department could be promoted as Law Secretary and the post of Law Drafting Officer has been upgraded to BPS-20 and these posts can be filled in only out of those officers who are serving in Law Department. The posts in common pool. Cadre strength, therefore, Ire available for those Additional Secretaries who are serving in Civil Secretariat minus the Law Department. According to him if the post of Secretary Law was filled in past from District and Sessions Judges, the aggrieved persons should have adopted legal course in order to protect their right of promotion.
6. On the other Raja Muhammad Hanif Khan and Mr. M. Tabassum Aftab Alavi, Advocates, appearing on behalf of the respondents, argued that under the provisions of Rules of Business, Law Department is the essential part of the Secretariat services. According to them three notifications which were issued by the Government on 6-6-1996, 11-5-1999 and 26-3-1992, respectively the posts of BPS-20 have been placed in common pool cadre strength out of which 40 per cent seats have been reserved for Secretariat services, 40 per cent for other Departments and 20 per cent for Management Group. However, after the issuance of these notifications, Government has been continuously ignoring for promotion the deserving employees of Law Department under the mistaken belief that this department is not the part of Secretariat. They relied on Government Secretaries Service Rules, 1992. They refuted the arguments that respondents, herein, had remedy before the Service Tribunal and that they have wrongly invoked the writ jurisdiction of the High Court for the redressal of their grievance. According to them, writ of mandamus, is the exclusive prerogative of the High Court. Service Tribunal under the provisions of the Service Tribunal Act cannot pass any order directing any public servant to pass any order which under law he is required to pass. While supporting the arguments, the learned Advocates of the respondents, argued that the Law Department is not the separate department but is part of the Secretariat. They in support of their contention relied upon the case titled Ferhat Ali Mir v. Azad Jammu and Kashmir Government, Writ Petition No,96 of 1997, decided on 22-5-1997, an unreported judgment of the High Court. According to them as the people serving in the Law Department have to perform a special duty in respect of drafting of law etc., therefore, special qualification is required for those who are interested in their induction or adjustment in the department. According to them any officer of Secretariat possessing qualification and experience required by Law can be accommodated in the Law Department through transfer. According to them in past Manshad Abbasi was transferred and posted in Law Department who served the department exceptionally well till the last days of his life.
In the same way one Muhammad Nazir was appointed through transfer and posted as Deputy Secretary in the Law and Parliamentary Affairs Department because he was also Law Graduate and possessed necessary skill. This shows that even in past officers from different branches of Secretariat who, had the- skill in Law were posted in Law Department.
7. We have heard the learned counsel for the parties and perused the record made available by them with their respective pleadings. The learned counsel for the appellants tried to convince us that the Law Department is not the part of the Secrretariat, therefore, the officers serving in this department cannot be considered for promotion against the posts in BPS-20 reserved for common pool cadre strength nor are eligible for promotion against other posts in BPS-20 in the Civil Secretariat. The first question which in the light of the arguments of the learned counsel for the parties needs to be resolved is as to whether Law, Department is a part of the Civil Secretariat like other departments or not. This question will decide as to whether officers serving in this department have got the right of promotion against posts in BPS-20 which in the light of Government notification dated 6-6-1996 have been reserved for common pool cadre strength. The business in Secretariat is conducted under the Rules of Business, 1985 as in force in Azad Jammu and Kashmir. All the departments of the Secretariat are mentioned in the Rules of Business. In the schedule of the departments the Law Department figures at Serial No,19. Therefore, there can be no other view that Law Department is a part of the Government Secretariat. No doubt certain qualifications have been laid down for certain posts in Law Department for those who wanted their induction in Law Department. In the same way, as rightly argued by the learned counsel for the' appellants, the vacancy of Draftsman of Law Department like Secretary Law is in BPS-20 and no person from Secretariat can ask for promotion against these posts merely on the basis of his seniority. The reason is that the people serving in Law Department are required to possess professional and technical qualification to their credit in order to meet the requirement of the job in the department in the performance of their duties, which are special in nature. In past, as rightly pointed out by the learned Judge in the High Court, some Deputy Secretaries have been- transferred from Civil Secretariat in the Law and Parliamentary Affairs Department as they were Law Graduates and were capable of performing duties in the Law Department. So, under the rule, as was practised in past, the suitable officers serving in other departments of the Civil Secretariat were appointed in the Law Department as Deputy "Secretary Law. The grievance pressed in the memo. Of appeal and during the course of arguments by the learned counsel for the appellants that in the Law Department the right to serve in officer grade has been reserved only for those who are serving in the department is not correct. Under law the Government is legally competent to appoint any person in Law Department through transfer from any other branch of the Civil Secretariat if in its wisdom he can fulfil the requirement of the job in Law Department. Under law even direct inductions be made in the Department. The observations made by the learned Judge in the High Court in this regard are in accordance with law. In the light of these admitted facts this argument is not available to the appellants that the Law Department is not a part of the Civil Secretariat of the Government merely on the ground that special qualification is laid down for the post falling in gazetted cadre. The prerogative of the Government to fill in the vacancy in the Law Department cannot be questioned. The only criteria under law is that a person sent to serve in the Law Department through transfer, or by promotion must possess technical qualification to meet the requirement of the post. The transfer and posting, as we all know, are to be made by those who are legally competent in his regard. It is the requirement of the public interest that a person should be adjusted against a post who is suitable and capable to meet the requirement of that post. For the above referred reasons, there is no force in the contentions of the appellants, that Law Department is not part of the Secretariat service.
8. Both the learned counsel for the appellants have raised an objection that the matter pertains to the terms and conditions of service of the contesting parties, thus the same should have been raised before the Service Tribunal having exclusive jurisdiction in this regard. They relied on the Accountant-General and others v. Zaman Hussain Khan 1998 PLC (C.S.) 431 and Ejaz Ahmad Awan and 5 others v. Syed Manzoor Ali Shah and another 1999 PLC (C.S.) 1439. In the first case Zaman Hussain Khan a Senior Teacher in Education Department was serving in BPS-15 when he was appointed as Lecturer in Education Department. During his tenure as Senior Teacher Grade B-17 with effect from 1-9-1984. In 1988 a Central Audit Party conducted the audit of the Government Offices at Kotli. This audit party raised an objection that Zaman Hussain Khan should have drawn advance increments in BPS-15 and not in BPS-17. It, therefore, recommended that excess amount of Rs,15,585 be recovered from him. This action of the audit party was assailed by him through a writ petition in the High Court on 25-3-1999. An objection was raised that as Service Tribunal stood duly established, therefore, the High. Court had no jurisdcitional competence to pass an order in respect of his pay which is one of the essential part of the terms and conditions of the service of the civil servants. This Court while relying on earlier judgment in Azad Jammu and Kashmir Government v.
Syed Zaman Ali Shah PLD 1991 SC (AJ&K) 57 held that all the matters which are enumerated in Chapter 2 of the Civil Servants Act are included in terms and conditions of service of the civil servants and any violation made by the competent Authority in respect of such matters may be assailed in appeal by an aggrieved civil servant before the Service Tribunal.
' In Ejaz Ahmad Awan and 5 others v. Syed Manzoor Ali Shah and another 1999 PLC (C.S.) 1439, it is laid down that the High Court will not entertain a proceeding in respect of a matter which falls within the exclusive jurisdiction of the Service Tribunal. Learned counsel for the appellants further relied on Azad Jammu and Kashmir Government v. Syed Zaman Ali Shah PLD 1991 SC (AJ&K)
57. In this case one Fahim Ahmad Khan was appointed as Superintendent of Police, Mirpur. His appointment was challenged on various grounds before the High Court by four senior officers of Police Department. Their writ petition was allowed by the High Court. The judgment of the High Court was set aside by the Supreme Court on the ground that transfer and posting is an essential part of the terms and conditions of service, therefore, High Court had no jurisdiction to entertain the writ petition. These authorities are distinguishable and have nothing common with the facts of the present case.
9. On the other hand it was argued by Raja Muhammad Hanif Khan and Mr. M. Tabassum Aftab Alavi, the learned counsel for the respondents, that answering respondents 1 to 8 invoked the Constitutional jurisdiction of the High Court seeking enforcement of Government Orders which are not under dispute. The Service Tribunal has got no jurisdictional competence to issue writ of mandamus, therefore, the objection in this regard is without substance.
10. The contesting respondents wanted the implementation of three Government Notifications, dated 6-6-1996, 11-5-1999 and 26-3-1992 as mentioned by us in the earlier part of this judgment.
The learned counsel for the respondents, therefore, are justified in arguing that their clients never challenged the validity and correctness of these notifications rather they sought the help of the Court for a direction that they being the employees of the Azad Government Secretariat Service be considered for promotion in BPS-20. Writ of mandamus is issued to compel holder of public office to act in discharge of legal duty. Such powers have been given to the High Court which it can exercise under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974. The writ jurisdiction available to the High Court in Azad Kashmir is no doubt a discretionary jurisdiction which is to be exercised within the limits laid down by the Interim Constitution Act, 1974. This is clear from the opening words 'subject to this Act' used in section 44 of the Interim Constitution Act. These words definitely mean that prohibition contained in any other provisions of the Interim Constitution Act, 1974 like subsection (2) of section 47 of the Act shall not be violated by the High Court while exercising writ jurisdiction. Under section 47 of the Interim Constitution Act, 1974 both Council and Legislative Assembly of Azad Jammu and Kashmir have got jurisdictional competence to legislate for and establish one or more Administrative Tribunals or Courts in respect of matters to which their jurisdiction is recognized by the Constitution Act. The Service Tribunal in Azad Jammu and Kashmir has been established in 1975. After the establishments of Service Tribunal the jurisdiction of ordinary Civil Courts including High Court have been, excluded in respect of matters falling within the jurisdiction of Service Tribunal. The matters which have been given in the exclusive jurisdiction of the Service Tribunal have been clearly mentioned in the Azad Jammu and Kashmir Service Tribunals Act, 1975. However, any civil servant aggrieved by an order passed in respect of terms and conditions of his service before 1st day of July, 1969 cannot avail the appellate jurisdiction of the Service Tribunal. From the reading of the Service Tribunals Act it becomes clear that Service Tribunal has not been vested with the powers to-issue such directions to a person performing functions in connection with the affairs of Azad Jammu and Kashmir to do, which he is required by law to do, or refrain from doing that which is not permitted by law to do: Such direction can be issued by the High Court. Any provision of law which seeks to take away the jurisdiction of the High Court available to it under the Interim Constitution Act, 1974, in our view must be construed strictly.
The jurisdiction of the High Court can be taken away through some express provisions otherwise the presumption would be in favour of the jurisdiction of the High Court.
11. It is clear from the provisions of Service Tribunal Act, 1975 that the Tribunal has got no jurisdcitional competence to direct any authority holding public office to implement any order which under law such authority is bound to implement. Same view has been taken by the Court in a case titled Ejaz Ahmad Awan and 5 others v. Syed Manzoor Ali Shah and another 1999 PLC (C.S.)
1439, that if a favourable order has been passed by a departmental authority but it is not being impelemented without just cause and the matter suffered from procrastination, a writ may issue to enforce its implementation provided that the order is valid and legally enforceable. The same view was earlier expressed by this Court in a case entitled Mrs. Iffat Ara- Saleem v. Sardar Muhammad Khurshid and 36 others [1996 SCR 254] and by the Supreme Court of Pakistan in S.H.M. Rizvi and 5 others v. Maqsood Ahmed and 6 others [PLD 1981 SC 612]. In S.H.M. Rizvi's case the jurisdiction of the High Court was invoked for the direction to a departmental authority to perform a duty enjoined upon it by law. The matter was challenged before the Supreme Court on the ground that as dispute related to the terms and conditions of service of the petitioner therein, they therefore, were not legally competent to avail remedy before the High Court in writ jurisdiction. The Supreme Court of Pakistan rejected the contention about the bar of jurisdcitional competence of the High Court and held:-- "In cases where the departmental authorities procrastinate or contumaciously refuse to pass a final order, as appears to have happened on the objection of the respondent, (for the objection filed in 1976 remains to date undisposed of and the provisional list that issued in 1976 is yet to be finalized) the remedy for the aggrieved civil servant is to represent to the next higher authority and after waiting for a reasonable time to seek Constitutional remedy for a direction to the department authority to perform a duty enjoined upon it by law. The Service Tribunal being a statutory forum with restricted jurisdiction cannot in the absence of a final order of departmental authority adjudicate on all legitimate grievances of civil servants."
12. In their writ petition respondents Nos.1 to 8 had requested for the direction that the officers of the Law Department be considered by the appropriate Selection Board for promotion against vacant posts in the Secretariat or in the common pool cadre strength alongwith the officers of the other branches of the Secretariat. Such direction could be issued only by the High Court and not by Service Tribunal having limited jurisdiction as discussed in the earlier part of this judgment.
Therefore, this objection is without substance.
13. The last objection is that writ filed by the contesting respondents was liable to be dismissed as the same was hit by ladies. The point of laches is not attracted in the instant case. The writ was filed by the respondents for the enforcement of law. They have not challenged the legality and correctness of the Government Orders rather they wanted that a direction be issued to the respondents to consider them for further promotion alongwith other eligible persons of Civil Secretariat in accordance with law. Therefore this objection also is without any substance.
' For the above stated reasons, both the appeals are dismissed, without any order as to costs.