RIZWANA MALIK DEPUTY DIRECTRESS Versus The AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR
RAJA SAEED AKRAM KHAN, J.---- The titled appeal, by leave of the Court, arises out of the judgment passed by the Service Tribunal on 31.5.2019, whereby the appeal filed by the appellants, herein, has been dismissed.
2. The necessary facts, forming background of the instant appeal, are that the appellants, herein, challenged the notification dated 04.09.2018, through which the Government framed "The Azad Jammu and Kashmir Elementary and Secondary Education Department Administrative Cadre (Appointment and Conditions of Service) Rules, 2018" (hereinafter to be referred as Rules, 2018), by substituting the previous Rules namely "Azad Jammu and Kashmir School Cadre Service Rules, 1989", issued vide notification dated 18.05.1994 (hereinafter to be referred as Rules, 1994). The appellants claimed that they are entitled for promotion against the higher grades of administrative cadre without any restriction of specific educational qualification but the official respondent substituted the rules and added the academic qualification for promotion which amounts to deprive the appellants from their accrued right of promotion. Moreover, in the newly framed rules the administrative cadre and teaching cadre have illegally been separated and in accordance with the newly framed rules, only the DEOs are eligible for promotion against the post of Divisional Director and the appellants who are serving as Principals, Headmasters, Senior Subject Specialists and Subject Specialties, cannot be promoted. The learned Service Tribunal, after necessary proceedings, dismissed the appeal through impugned judgment dated 31.05.2019, hence, this appeal, by leave.
3. Raja Amjad Ali Khan, advocate, counsel for the appellants, submitted that the learned Service Tribunal has misconstrued law and the facts of the case while handing down the impugned judgment. He submitted that the real controversy involved in the matter has not been attended to in a legal manner and the judgment is based on non-application of judicial mind. He forcefully argued that the Rules, 2018 have been promulgated just to accommodate a specific class, which amounts to deprive them from the right of promotion and is a violation of law. The learned counsel further submitted that the learned Service Tribunal also failed to appreciate that the rights accrued under the Rules, 1994 to the appellants cannot be snatched by the newly enforced rules and they have been deprived of the valuable service right of promotion. The learned counsel lastly submitted that the Service Tribunal failed to understand that the appellants have not challenged the power of the authority to frame rules, therefore, the findings of the learned Tribunal that it is prerogative of the authority to make rules, are against the record, rather, discrimination caused to the appellants through the impugned rules, was called into question by filed the appeal.
4. On the other hand, Raja Inaamullah Khan, the learned Advocate-General, while controverting the arguments of the counsel for the appellants, submitted that the judgment passed by the Service Tribunal is perfectly legal, which is not open for interference by this Court. He added that the appellants do not come within the purview of the aggrieved persons and incompetent appeal was filed before the Service Tribunal, as no adverse order has been passed against them, as laid down by section 4 of the Azad Jammu and Kashmir Service Tribunals Act, 1975 and the appeal has been filed mere on apprehension, which is not warranted under law. The learned Additional Advocate-General submitted that through the Rules, 2018, two different modes for promotion have been provided for two different service cadres, so as to avoid any ambiguity, therefore, the said rules do not suffer from any legal infirmity.
5. We have heard the learned counsel for the appellants, the learned Additional Advocate-General and perused the record along with the impugned judgment.
6. The controversy involved in the case in hand is that the Azad Jammu and Kashmir School Cadre Service Rules, 1989, issued vide notification dated 18.05.1994, have been substituted with the Azad Jammu and Kashmir Elementary and Secondary Education Department Administrative Cadre (Appointment and Conditions of Service) Rules, 2018. The newly framed rules were challenged by the appellants, herein, through an appeal before the Service Tribunal, which has been dismissed through the impugned judgment. There is no cavil with the proposition that the vires of the rules can be challenged before the Service Tribunal but the question arises that the right of appeal is provided to any civil servant, aggrieved by any final order, whether original or appellate, made by the departmental authority, in respect of any of terms and conditions of his services, as provided by section 4 of the Azad Jammu and Kashmir Service Tribunals Act, 1975. The counsel for the appellants was confronted as to how the appellants are aggrieved from the framing of rules and as to which adverse order has been passed against the appellants? He was unable to satisfy the Court while submitting that by enactment of the Rules, 2018, the right of promotion of the appellants has been stopped, while imposing some conditions for promotion.We are afraid that no such argument is available at this stage when the case of promotion of the appellants is not examined in the light of the above-referred rules. The learned Additional Advocate-General has rightly argued that the appellants do not come within the purview of the aggrieved persons. An identical proposition has been dealt with by this Court in the case reported as Ghulam Muhammad Executive, Engineer, Local Government, Eid-Gah Road, Muzaffarabad v. Azad Government through its Chief Secretary having its office at New Secretariat Complex, Lower Chattar, Muzaffarabad and another [2001 PSC 205], wherein, it has been observed by this Court, as under:--
"5. We have given due consideration to the arguments raised at the Bar. It is evident from the case-law cited by the learned counsel for the parties that vires of departmental rules can be gone into by the Service Tribunal only if the rules have been interpreted to the disadvantage of a civil servant adversely affecting the terms and conditions of his service. Except the unreported case of this Court titled Muhammad Imtiaz Khan v. Azad Government of the State of Jammu and Kashmir in Civil Appeal No.18 of 1995, decided on 17.5.1995, in all other cases relied upon by the learned counsel for the appellant, the rules were challenged before the Service Tribunal after the same were interpreted to the disadvantage of a civil servant. So far as Imtiaz Khan's case is concerned, the question as to whether the departmental rules can be independently challenged before the Service Tribunal or not was not subject-matter of controversy between the parties; the point was not raised and no finding was given on any such point by this Court. However, the case was remanded to the Service Tribunal with the direction that it should also consider the point relating to the vires of the departmental rules and decide the matter afresh according to law. Obviously, the aforesaid case cannot be interpreted to mean that this Court has held that departmental rules can be challenged independently even if the same were not interpreted to the disadvantage of a civil servant. It is clear from the provision contained in rule 4 of the Appeal Rules, 1991 and Section 4 of the Service Tribunals Act that the appeal etc. are competent to the concerned authority only if an order has been passed regarding the terms and conditions of service of civil servant. There is no provision in the Rules or Service Tribunals Act to the effect that the departmental rules can be challenged even if the same were not interpreted to the disadvantage of a civil servant."
Thus, we are of the view that the learned counsel for the appellants failed to substantiate that any terms and conditions of service of the appellants have been adversely affected. The learned Service Tribunal has not committed any illegality or irregularity while dismissing the appeal.
The result of the above discussion is that finding no force in this appeal, the same is hereby dismissed with no order as to costs.
ZC/6/SC(AJ&K) Appeal dismissed.