' KHAWAJA MUHAMMAD SAEED, J.---This appeal with the leave of the Court has been filed against the judgment of the High Court passed on 18-11-2000 whereby writ petition filed by the appellants against the Government Notification No, 3/14/96-AD dated 18-6-1998 was dismissed.
2. Relevant facts briefly stated are that the appellants herein filed a Constitutional petition in the High Court under section 44 of the Interim Constitution Act, 1974, for the cancellation of the Government Notification No 3/14/96-AD, dated 18-6-1998 and for direction to act. Upon the notification of the Government dated 25-2-1975. According to the appellants their designation as District Mufties was changed to District Qazis vide notification dated 25-2-1975 and their pay and other emoluments were brought at par with the District and Sessions Judges. Thereafter, on 5-4- 1983 another notification was issued whereby like District and Sessions Judges four District Qazis were upgraded in B-19. Thereafter, another notification was issued on 3-1-1994 whereby 15% Qazis were allowed Selection Grade as a matter of parity with the District and Sessions Judges. Through a Government Notification No, 3/14/96-AD dated 18-6-1998 eight posts of District and Sessions Judges were upgraded from B-19 to B 20. In this notification it was laid down that the posts of District Qazis shall not be upgraded, and further that Notification dated 25-2-1975 whereby status of District Qazi was brought at par with the District and Sessions Judge, shall be amended accordingly. The validity of this Notification was assailed by the appellants in the High Court on the ground that notification dated 25-2-1975 was given effect as such it has become essential part of the terms and conditions of their service, the same, therefore, cannot be amended in such a manner which would deprive them from valuable accrued rights. According to the appellants as they are performing same functions and duties which Sessions Judge the other member of the Court is performing as such the. Notification dated 18-6-1998 is discriminatory and without lawful authority.
3. The High Court opined that controversy raised in the petition is related to the terms and conditions of service of the appellants as such the same is outside the jurisdictional competence of the High Court. The appellants, therefore, were advised by the High Court to seek remedy from Service Tribunal.
4. Mr. Ghulam Mustafa Mughal, the learned counsel for the appellants, argued that his clients are performing same functions which Sessions Judges are performing, therefore, keeping in view the duties which they are performing the Government on 25-2-1975 designated them as District Qazis and held each one of them entitled to pay and other emoluments which were available to the Sessions Judge the other member of the Court. In furtherance of this notification another notification was issued by the Government on 5-4-1983 whereby four District Qazis namely Syed Shams-ud-Din Bokhari, Syed Habib-ur-Rehman Shah, Molvi Muhammad Abdullah and Syed Muhammad Ashraf Shah were given B-19. Thereafter, in 1994 through another notification 15% Qazis were held entitled to Selection Grade on the basis of parity with the District Sessions Judges.
According to him as notification earlier issued on 25-2-1975 has , been acted upon, therefore, a valuable right has accrued to his clients. They, therefore, cannot be deprived of from their vested right as is intended by the Government by issuing the impugned notification. He further argued that in the impugned notification it is laid down that necessary amendment shall be made in notification dated 25-2-1975, the appellants, therefore, were justified to seek remedy in the shape of writ of prohibition from the High Court as the impugned notification is directly in conflict with the Fundamental Rights Nos. 4, 15 and 17 guaranteed by the Azad Jammu and Kashmir Interim Constitution Act, 1974. According to learned counsel the High Court in this regard has got exclusive jurisdiction to strike down any law which is in conflict with any fundamental right guaranteed to the State Subjects by the Interim Constitution Act, 1974. He in support of his contention referred two cases titled Azad Government and another v. Abdul Kabir Qureshi and others (1994 SCR 402) and Ejaz Ahmad Awan and 5 others v. Syed Manzoor Ali Shah and another (1999 PLC (C.S.) 1439).
5. On the other hand the learned Additional Advocate-General argued that in view of the bar contained in section 47 of the Interim Constitution Act, 1974 the High Court has got no jurisdictional competence to entertain any grievance in respect of any matter related to the terms and conditions of service of the civil servant. The High Court, according to the learned Additional Advocate-General, was justified to dismiss Constitutional petition of the appellants as in their petition, the appellants had challenged the notification of the Government which is related to the terms and conditions of their services.
6. We have considered the respective arguments of the parties and have gone through the record.
7. Islamic Penal Laws Act was enforced in Azad Kashmir in 1974. Under this Act two members Courts were established in Azad Kashmir at Tehsil and District level. Through Government Notification No,Admin/3171-79/75 dated 25-2-1975 the District Mufties were designated as District Qazis and their pay and other emoluments were brought at par with the District and Sessions Judges. In furtherance of this notification another Notification was issued on 5-4-1988 whereby the senior most four District Qazis were given B-19. Through another Notification No, SO/11-15, dated 3-1-1994 15% District Qazis were allowed Selection Grade as a matter of parity with Sessions Judges. In Punjab the District and Sessions Judges were allowed B-20 Demand of District and Sessions Judges for Grade B-20 in Azad Jammu and Kashmir was accepted by the Government on the ground of parity with their counterparts in Punjab vide Notification No 3/14/96-AD, dated 18-6-1998, However, it was incorporated in this notification that the posts of District Qazis shall not be upgraded and further that the notification issued earlier on 25-2-1975 whereby status of District Qazis was brought at par with the Sessions Judges shall be amended accordingly. The appellants availed the Constitutional jurisdcition of High Court to assail this notification of the Government on the ground that the notifications earlier issued by the Government on 25-2-1975, 5-4-1983 and 3-1- 1994 respectively have been acted upon as such have become a part of the terms and conditions of their service. The appellants under these notifications have acquired the right of further promotion like Sessions Judges, hence this fresh notification is bad in law and its implementation shall deprive them of from valuable right of promotion. This writ petition was dismissed by the High Court on the objection of the Government that the matter relates to the terms nd conditions of service of the appellants as such the same can be raised before the Service Tribunal having exclusive jurisdiction in this regard.
8. Admittedly the District Qazis are performing same functions which Sessions Judges are performing in respect of cases which are triable by the District Court of criminal jurisdcition. On account of this reason a notification was issued on 25-2-1975 whereby they were held entitled to the salary and other emoluments which the other member was drawing. In order to give proper effect to this notification, two further notifications were issued on 5-4-1983 and 3-1-1994 resperctively whereby four posts of District Qazis were upgraded in B-19 and 15% Qazis were allowed selection grade as a matter of parity. Under fresh notification dated 18-6-1998 it is laid down that District Qazis shall not be given B-20 like Sessions Judges and for this purpose the earlier notification issued in their favour shall be amended accordingly. The case of the appellants is that the earlier issued notifications have become part and parcel of the terms and conditions of their service as such notifications cannot be amended as they would be derpived of from their vested valuable rights.
9. Their objection is that notification issued on 18-6-1998 is repugnant to the fundamental rights guaranteed by the Interim Constitution Act as such to the extant it affects them, is without lawful authority and of no legal effect. According to Mr. Ghulam Mustafa Mughal as vires of notification were challenged in the writ petition by the appellants, the High Court alone could under section 44 of the Interim Constitution Act, pronounce upon the validity or otherwise of this notification. The learned Judge in the High Court in the wisdom of the learned counsel for the appellants has committed an error in dismissing their writ petition for lack of jurisdictional competence.
10. This Court has repeatedly expressed this view that any matter which falls within the ambit of terms and conditions of civil servants cannot be resolved by any Court including High Court in exercise of its writ jurisdcition except Service Tribunal. In case titled Ghiasul Haq and others v Azad Government of the State of Jammu and Kashmir etc. (PLD 1980 SC (AJ&K) 5) it was observed that even vires of the law could be looked into by the Service Tribunal which can determine as to whether any statute is ultra vires of the Constitution or not. The facts of the case were that Giasul Haq and some other civil servants were compulsorily retired from their services. They challenged the order of their retirement from service in appeal before the Service Tribunal and also challenged the vires of sub-rules (2) to (4) of rule 6 of the Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline), Rules, 1977 in the High Court through writ petitions that these provisions were repugnant to the fundamental rights guaranteed by the Constitution. The High Court accepted their written petition and declared the abovementioned provisions of the Efficiency and Discipline Rules as violative and consistent to the Interim Constitution Act as such void. This judgment of the High Court was assailed in appeal by the parties before this Court. The Supreme Court allowed the appeals of the Government. The relevant observations recorded at page 27 for the convenience of reference are reproduced below:-- "17. The learned Judges of the High Court, it appears were also gognizant of the fact that they could not go into the correctness or otherwise if the order of punishment recorded against the respondents. But, they assumed jurisdiction on the ground: ' in this Court, the petitioners have challenged the vires of the rules. Under Article 44 of the Constitution, this Court is the only competent forum which can determine that a particular statute or provisions of a statute are ultra vires to the Constitution or not': Thus, if it can be held that it is within lawful competence of the Service Tribunal to pronounce upon the validity or otherwise of a rule being inconsistent with any of the provisions of the Constitution Act, including the fundamental rights, then the judgment of the High Court is liable to Ix set aside on this short ground because if foundation laid is riot available, the superstructure based thereon must of necessity vanish away.
"When the respondents had approached the High Court with prayer that sub-rule (3) of rule 6, which provided for a summary procedure, be declared ultra vires, being repugnant to the actuality clause, guaranteed by the Constitution Act, did it not mean that, on their own view of law, sub-rule
(3) being inconsistent with paragraph 15 of the Fundamental Rights was deemed to be nonexistent in their case, and the only valid provision applicable to them was sub-rule (2) of rule 6. There is no provision in the Constitution Act or in any other enactment ousting the jurisdiction of the Tribunal to determine such a question. It is well established that in order to decide a dispute or a matter, it is competent for a Court or Tribunal to determine all questions arising therefrom, connected or ancillary thereto. Determination of which is necessary for the decision of the main dispute or matter, unless its jurisdiction to determine the same is expressly or impliedly barred. In this view of the matter also the Service Tribunal is competent to determine, whether or not sub-rules (2) to (4) of rule 6 of the Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977 is hit by equality clause and as to which of the two procedures prescribed by rule 6 should have been observed by the authorised officers in the case of respondents..
11. In the light of this judgment of the Supreme Court the Service Tribunal can competently resolve the dispute as to whether the impugned notification is or is not bad in law. The other contention of the learned counsel for the appellants is that his client had filed writ of prohibition which can be allowed only by the High Court. Even this objection is without substance. In respect of matters relating to terms and conditions of service no such writ can be issued to deprive competent authority from amending, cancelling or rescinding any order, notification earlier i-sued by it. In Dr. Muhammad Sarwar v. Dr. Muhammad Sharif Chatter etc. (1998 PLC (C.S.) 127) the respondent, Dr. Muhammad Sharif Chatter had obtained his promotion order from the Government. He filed a Writ Petition in the High Court seeking a writ of prohibition against the Government that Notification dated 13-5-1993 relating to his promotion should not be amended or cancelled because in view of section 21 of General Clauses Act if an order is acted upon, it cannot be amended, rescinded or cancelled, especially without hearing the party concerned. The High Court allowed the writ petition and issued the writ of prohibition against the Government. The judgment of the High Court was assailed in appeal before this Court. The Supreme Court allowed the appeal and reiterated the view earlier taken by this Court in a case entitled Raja Naveed Ahmed v. Qazi Khalil-ur-Rehman etc. (1994 SCR 267) that no writ of prohibition can be issued by the Hihg Court in respect of matter falling within the terms and conditions of civil servant. The relevant observations reported at page 295 are as follows:- "So far as the question of jurisdiction of the High Court is concerned, we have repeatedly held that if the matter falls within the ambit of 'terms and conditions' of a civil servant the grievance regarding the same cannot be redressed by invoking the writ jurisdiction of the High Court in view of section 47 of the Azad Jammu and Kashmir Interim Constitution Act. In the instant case the respondent No, 1 wanted to protect an order which pertained to his promotion because the same had been acted upon; it was also stated that before amending or cancelling the said order, the respondent was not given the opportunity of being heard. However, the High Court issued the writ of prohibition in terms that the notification dated 13-5-1993 shall not be disturbed at all which means that the notification in question cannot be cancelled or amended even after hearing the respondent. It may be stated here that as has been held in case reported as 'The Engineer-in-Chief Branch through Ministry of Defence, Rawalpindi and another v. Jalaludin' (1989 SCMR 441) referred to above, an order which is patently illegal or void can be recalled even the same had been acted upon. In such case the principle of 'audi alteram partem' may be violated but it cannot be said that even if an order is illegal, the same cannot be cancelled, rescinded or amended because it had been acted upon. It would not be proper for us to make any further comments so far as the legality of the order dated 13-5-1993 is concerned; it is for the appropriate authorities to consider its legality. However, it may be emphasized here that the High Court while passing the impugned judgment has not taken into consideration the dictum given by this Court that if matter pertains to the terms and conditions of civil servants the writ jurisdiction of the High Court cannot be invoked in view of section 47 of Interim Constitution Act, 1974. A reference may be made to a case 'Raja Naveed Hussain Khan v Qazi Khalil-ul-Rehman and others' (1994 SCR 267) referred to above, in which the point has been dealt with at length. Besides, the High Court has taken an erroneous view in issuing an absolute writ which implies that an order which has been acted upon cannot be recalled, rescinded or amended even if the same is patently illegal."
12. In Ghiasul Haq case, this Court for the first time observed, that after the establishment of Service Tribunal the jurisdiction of ordinary Civil Court C and superior Court stands ousted.
13. The learned counsel for the appellants has relied upon the following broad principles which were laid down by this Court in a case titled Ejaz Ahmad Awan and 5 others v. Syed Manzoor Ali Shah and another [1999 SCR 204]:-
(1) If an sdverse order has been passed by a departmental authority, it can only be challenged by filing appeal before the Service Tribunal to the total exclusion of the jurisdiction of the High Court.
(2) If a favourable order has been passed by a departmental authority but it is not being implemented without just cause and the matter suffers from procrastination a writ, subject to just exceptions, may issue to enforce its implementation provided always that the order is valid and legally enforceable.
(3) Principle laid down in No, 2 above would not apply if the previous order is being reconsidered or is being recalled in which case reasonable time should be allowed for the reconsideration and final disposal of the matter. In such cases High Court cannot issue a direction to the relevant departmental authorities not to withdraw or amend the order sought to be implemented through the writ petition.
(4) If a final order has not been passed the concerned civil servant should wait till passing of such order and then challenge it before the Service Tribunal instead of approaching the High Court for a declaration or injunction regarding a matter which falls within the ambit of terms and conditions of his service e.g. Seniority, promotion, posting etc.
(5) If an application, appeal or review is pending for disposal with the departmental authorities, the High Court is competent to issue a direction for its disposal within a reasonable time by fixing a time limit. However, this power will be execisable only if the High Court is satisfied that the departmental authorities are procrastinating or contumaciously refuse to pass a final order."
' Even in this authority it is laid down that the High Court cannot issue writ of prohibition against competent authority directing it not to withdraw or amend any order or notification as is apparent from paras. 1 and 3 quoted above. In the light of the consistent view taken by this Court, the High Court was justified in dismissing the writ petition of the appellants. The appellants were rightly advised to seek the redressal of their grievance by availing remedy before the Service Tribunal.
' This appeal in view of above, having no merit is dismissed with no order as to the costs.