AZAD GOVERNMENT OF THE STATE OF J&K Versus PRVAIZ KHAN

ORDER

1. Respondent Pervaiz Khan filed a writ petition in the High Court in which Azad Government of the State of Jammu and Kashmir and Additional Chief Secretary (General) were impleaded as respondents. It was averred by the respondent, inter alia, that a representation filed by him in respect of some of his service rights was not being disposed of by the concerned authorities while cases of some other civil servants were being sent to the Selection Board for next promotion and respodent s name was not included. It was prayed that petitioners may be directed to dispose of the representation mentioned above in light of the Constitution and law and not to order promotion of any other civil servant meanwhile. An application for interim relief was also filed alongwith the writ petition in which it was prayed that pending disposal of the writ petition the cases of other civil servants may not be sent to the Selection Board.

2. The High Court on 28th June, 1993 called para wise comments and fixed the 28th of October, 1993 as the next date of hearing. Meanwhile status quo was ordered to be maintained subject to objections of the opposite‑party.

3. The Azad Government of the State of Jammu and Kashmir and Additional Chief Secretary (General) have filed petition for leave to appeal and have also filed an application that the operation of the High Court order may be suspended.

4. It is contended by Raja Muhammad Hanif Khan, the learned counsel for the petitioners, that the subject‑matter of the writ petition related to the terms and conditions of service of civil servants and the High Court, by issuing the order under appeal, assumed the jurisdiction which is not vested in it in view of section 47 of the Azad Jammu and Kashmir Interim Constitution Act read with Azad Jammu and Kashmir Service Tribunals Act. The learned counsel for the respondent Sardar Pervaiz Khan, who has put in a caveat, submits that to the facts of the present case section 4 of the Service Trbunals Act is not attracted because that section only provides an appeal against an order passed by a departmental authority while in the present case the petitioner, before the High Court seeks a direction that a representation filed by him with the concerned departmental authority may be decided in accordance with law.

5. In my view the case needs detailed examination because there is force in the contentions of Raja Muhammad Hanif Khan. However, it will be open to Sardar Rafique Mahmood Khan to show that the case falls within the jurisdiction of the High Court in spite of the ouster clause mentioned above. Leave is, therefore, granted.

6. Arguing the petition for suspension of order Raja Muhammad Hanif Khan submits that:‑‑

(a) The order passed by the High Court stops the promotion of some civil servants which is one of the terms and conditions of service and the Service Tribunal has exclusive jurisdiction to hear these matters.

(b) The High Court has not heard the civil servants mentioned above before passing an adverse order against them.

(c) The order has been passed without admitting the writ petition or applying mind to the facts of the case.

(d) According to rule 34 of the High Court (Procedure) Rules a stay order can only be issued after giving a notice to the opposite‑party or, in emergent cases, by dispensing with requirement of notice, but in the present cases neither notice has been issued nor requirement of notice was dispensed with; in any case it was not an emergent case.

7. The grant of interim relief was vehemently opposed by Sardar Rafique Mahmood Khan. He submits that the circumstances of the case are such that it was necessary in the interest of justice that status quo should have been ordered to be maintained.

8. After hearing the learned counsel for the parties I am of the view that the present facts make out a case for suspending the operation of order of the High Court. Without going into details at the present stage, I find force in the submissions made on behalf of the, petitioners. Particularly I find force in the submissions that the order passed by the High Court has the effect of stopping the promotion of some civil servants who are not arrayed as respondents and also that the case is not, prima facie, of an emergent nature within the meaning of rule 34 of the Azad Jammu and Kashmir High Court (Procedure) Rules and an interim relief in the case could have been granted only after hearing the other party. I am cognizant of the fact that the High Court was closing for long vacation when the case was taken up on 28th of June, 1993 but the matter I could have been conveniently entrusted to the Vacation Judge.

9. It is, therefore, ordered that the operation of status quo passed by the High Court on 28th of June, 1993 shall remain suspended till the disposal of the appeal.

10. A.A./12/SCA Order accordingly.