SALEEM AHMAD and another vs AZAD JAMMU AND KASHMIR GOVERNMENT

' SARDAR SAID MUHAMMAD KHAN, C.J.---As the facts of above titled two appeals are inter-related, we propose to dispose of the same by this single judgment,

2. Appeal No,95 of 1999, entitled Saleem Ahmad and another v. Azad Jammu and Kashmir Government and others has been directed against the judgment of the High Court, dated 29-5- 1999, whereby the writ petition filed by the appellants, herein, was dismissed in limine .

3. The brief facts of the aforesaid appeal are that the appellants, herein, filed a writ petition in the High Court challenging the order of the Chairman, Azad Kashmir Mineral and Industrial Development Corporation (hereinafter shall be called the Corporation), dated 20-3-1999 and an amendment which was made in the said order vide his order, dated 22-3-1999. The case of the appellants, herein, in the High Court was that they were senior to Kh. Abdul Hameed, respondent No,6, and were entitled to promotion as Secretary of the Corporation in view of the relevant departmental rules. It was further contended that the said promotion could be ordered only by the Board of Directors of the Corporation and not its Chairman. It was further alleged that the Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977, are also applicable to the parties and, thus, the promotion could only be ordered under section 10-A of the said Rules on acting charge/officiating basis but it has not been done. The case of Abdul Hameed,' respondent No,6, in the High Court was that his appointment as Secretary of the Corporation was not made by promotion or direct recruitment but the same was done by transfer because he enjoyed Grade B-18 which the post of the Secretary of the Corporation carried. In alternative, the case of respondent No,6 was that his promotion having been made subject to the 'approval' by the Board of Directors was validly made by the Chairman of the Corporation. So far as the seniority of the appellants, herein, to the said respondent was concerned, it was not disputed. The learned Judge in the High Court has held that the Chairman had the power to make transfer of the officers falling under categories III and IV of the Corporation and, thus, the impugned order was rightly made by the Chairman subject to approval of the Board of Directors, However, in fact the post of the Secretary had been upgraded in Class II by an amendment. It was further observed by the High Court that according to rule 24 of the Azad Kashmir Mineral and Industrial Development Corporation Service Rules, 1974, the rules applicable to the civil servants are also applicable to the employees of the Corporation with regard to their appointments, promotions etc., and, thus, the respondent No,6 would be deemed to be a civil servant, and as such, the High Court had no writ jurisdiction in the matter.

4. However, in this Court, the respondents have shifted their stand in their concise statement and at the time of arguments in terms that the post in question is to be filled in by promotion and not by transfer. A written .Application was also given on behalf of the counsel for the respondents, Mr. Ghulam Mustafa Mughal and Kh. Attaullah, Additional Advocate-General, to the effect that the concerned authorities are going to fill in the post in question by promotion under rule 5 of the Azad Kashmir Mineral and Industrial Development Corporation Service Rules, 1974, and, thus, it is desirable that both the above entitled appeals are finally disposed of by this Court in view of their aforesaid stand so as to save the parties from inconvenience which they may face in case of remand of their cases to the High Court.

5. It may be observed that a Full Bench of this Court has resolved the question of jurisdiction of the High Court vide its order in an unreported case entitled Shaheen Asad v. Azfar Yaseen (Civil Appeal No,44 of 1999, decided on 14-4-2000), in terms that the employees of the Corporation are not civil servant and, thus, the High Court has the jurisdiction to exercise its writ jurisdiction. Therefore, the question of jurisdiction is no more subject of dispute in the present judgment.

6. Appeal No,78 of 1999 has been directed against the order passed by the High Court on 2-4-1999, whereby the writ petition filed by the respondent, herein, was admitted for regular hearing and the application for grant of interim relief was allowed.

7. The brief facts of appeal entitled Azad Kashmir Mineral and Industrial Development Corporation v. Raja Aatif Akram are that the post of Secretary of the Corporation fell vacant on 14-3-1999 due to the sad demise of one Kh. Shafique Ahmed Pandat. Khawaja Abdul Hameed appellant No,3 was transferred and posted as Secretary of the Corporation vide order, dated 20-3-1999. Afterwards, the relevant order was amended and he was promoted as Secretary in his own 'pay and grade', however, subsequently, he was also granted Selection Grade B-19 vide order, dated 1-9-1998. It may be observed that the post of Secretary is basically a post of Grade B-18. According to the Azad Kashmir Mineral and Development Corporation Service Rules, 1974, the method of appointment is laid down in rule 5, it is to be made either by initial recruitment, by promotion or by transfer from another cadre. Aatif Akram, respondent, who is serving as Assistant Secretary in Grade B-17 in the Corporation, challenged the legality of the order, dated 20-3-1999, by filing a writ petition before the High Court. A learned Judge in the High Court vide his order, dated 2-4-1999, admitted the writ petition for regular hearing and also granted the interim relief in terms that no promotion should be made in violation of the existing Rules.

8. Mr. M. Tabassum Aftab Alvi, Advocate, the learned counsel for Saleem Ahmad, appellant in Appeal No,95, has contended that he has no objection if Appeal No,95 is disposed of in terms that the post in question should be filled in by promotion, provided the order of promotion of Abdul Hameed, respondent, as Secretary in his own pay scale is set aside. It is evident that the counsel for the parties are agreed in Appeal No,95 that the post in question is to be filled in by promotion as laid down in rule 5 of the aforesaid rules.

9. Raja Muhammad Hanif Khan, Advocate, the learned counsel for the respondent in Appeal No,78, has controverted that the vacancy in question is to be filled in by promotion. He has argued that the said vacancy is to be filled in by promotion but he has argued that Aatif Akram, respondent, being serving in the cadre in which the post of Secretary exists, was entitled to promotion, and that it is not correct that the post in question is to be filled in by promotion of an employee who was serving in some other cadre. The learned counsel has contended that as Saleem Ahmad and Muhammad Shafique, appellants, in Appeal No,95 and Abdul Hameed, respondent in both the above entitled appeals, are serving in different cadres, they could not be appointed as Secretary of the Corporation by promotion in view of the provisions contained in rule 5 of the said rules.

10. We have given due consideration to the arguments raised at the Bar. First dealing with. Appeal No,95 entitled Saleem Ahmad and another v. Azad Jammu and Kashmir Government and others, it may be observed that the High Court was not justified in dismissing the writ petition in limine. The High Court was also not correct in holding that it was for the Chairman to appoint Abdul Hameed, respondent, as Secretary, without considering the provisions contained in rules 10-A and 10-B of the Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977, read with rule 24 of the Azad Kashmir Mineral and Development Corporation Service, Rules, 1974, because if a situation is not covered by the Azad Kashmir Mineral and Development Corporation Service Rules, 1974, the said rules of 1977 governing the civil servants are to be resorted to. The other ground which weighed with the High Court for dismissing the writ petition in limine was that the employees of the Corporation are civil servants and, thus, it had no jurisdiction in the matter. It has already been held by the Full Bench of this Court that it had got the jurisdiction to entertain the writ petitions of the employees of the Corporation in appropriate cases. Thus, we accept the appeal (Appeal No,95 of 1999) entitled Saleem Ahmad and another v. Azad Jammu and Kashmir Government and others and remand the case to the High Court with the direction that it shall admit the writ petition for regular hearing and decide the same according to law.

11. So far as the contention of the counsel for the respondents that while deciding the above titled appeals, both writ petitions may be decided finally by this Court is concerned, that cannot be accepted in view of the fact that until and unless the matter is finally decided by the High Court in light of the pleadings of the parties, filed before it, this Court is not legally competent to finally decide the writ petitions as a Court of appeal.

12. Dealing with Appeal No,78 of 1999 entitled AKMIDC and others v. Raja Aatif Akram, it may be stated that this appeal has been directed against the order of admission of the writ petition mainly on the ground that as Aatif Akram, who was petitioner in the High Court, was a civil servant within the meanings of Civil Servants Act, the writ petition was not competent.As we have already stated that the employees of the Corporation are not civil servants and the writ petitions are competent, hence we dismiss the appeal and also maintain stay order issued.

13. It may be observed that as the post of Secretary of the Corporation is disputed in both the writ petitions in the High Court, it would be in the fitness of things if the said writ petitions are heard and decided simultaneously by the same Bench of the High Court so as to avoid any conflict between its judgments.

In the light of what has been stated above, appeal entitled Saleem Ahmad and another v. Azad Jammu and Kashmir Government and others (Civil Appeal No,95 of 1999) is accepted while appeal entitled Azad Jammu and Kashmir Mineral and Industrial Development Corporation and others,v.

Raja Aatif Akram (Civil Appeal No,78 of 1999) is hereby dismissed. The High Court shall proceed with the writ petitions in the light of observations made above.