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Writ Petition No.2654 of 2014, decided on 7th January, 2015.

----Ss. 44 & 47(2)---Azad Jammu and Kashmir Service Tribunal Act (XXII of 1975), S. 4---Writ petition---Civil service---Transfer of an employee---Alternate remedy---Where any Administrative Court or Tribunal had been established no other Court could grant an injunction, make any order or entertain any proceedings with regard to any matter to which jurisdiction of such Administrative Court or Tribunal had been extended---Azad Jammu and Kashmir Service Tribunal having been established, writ petition was hit by the provisions of S.47(2) of Azad Jammu and Kashmir Interim Constitution Act, 1974---Petitioner had an alternate, adequate and efficacious remedy to challenge notification of her transfer before Service Tribunal---Present writ petition was also barred under S.44(2) of Azad Jammu and Kashmir Interim Constitution Act, 1974---Writ petition was dismissed in limine however petitioner would be at liberty to challenge impugned notification before the concerned Service Tribunal as per law.

----S. 2(1)(b)---Azad Jammu and Kashmir Service Tribunal Act (XXII of 1975), S.2 (b)---"Civil servant"---Meaning---Exclusion of category of employees from the ambit of "civil servant" detailed. Muhammad Sarfaraz and 174 others v. Government of Punjab through Secretary, Education Department Civil Secretariat Lahore and others 2001 PLC (C.S.) 1224 and Shaheen Akhtar v. Government of Punjab and others 1988 PLC (C.S.) 70 rel. Muhammad Abrar for Petitioner.

The supra titled writ petition has been directed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, whereby following relief is solicited by petitioner:--- "It is, therefore humbly prayed on behalf of the petitioner that the impugned Notification bearing No.S/E&S/SF/23194-204/2014, dated 22-12-2014, may kindly be set aside by declaring the same as illegal unjust and without lawful authority Any other relief which this Hon"ble Court deems fit may also be granted to the petitioner to meet the ends of justice." 2. The precise facts culminating into filing of the instant writ petition are that petitioner was appointed as Computer Instructor B-17 in Education Department by the competent authority who has been performing her duties as such for many years. It is maintained that as per Government Policy framed through notification dated 3rd January, 2013, transfer and posting can be made at the end of Academic Session, however, by violating the aforesaid policy, private-respondent No.6 has been appointed by transfer as ad hoc Computer Instructor B-17 vis-a-vis to petitioner in Girls High School Gorah, vide impugned notification dated 22nd December, 2014, hence, the instant constitutional petition. 3. Mr. Muhammad Abrar, the learned counsel for petitioner, while reiterating the grounds of writ petition vehemently argued that the impugned notification supra has been issued by the official respondents violating Government Policy as visualized vide notification dated 3rd January, 2013, therefore, the same is bad in law. The learned counsel on court query, submitted that petitioner is an ad hoc Computer Instructor who is not a Civil Servant, hence, cannot invoke jurisdiction of Service Tribunal for redressal of her grievance, therefore, craved for admission of writ petition. 4. After hearing the learned counsel for petitioner at length I have perused the contents of writ petition and examined the appended documents. The petitioner has challenged vires of the impugned notification dated 22-12-2014, whereby she has been appointed by transfer as Computer Instructor B-17 in Girls High School Mangriote vis--vis to private respondent. As per section 47(2) of the Azad Jammu and Kashmir Interim Constitution Act, 1974, where any Administrative Court or tribunal is established no other Court shall grant an injunction, make any order or entertain any proceedings in respect of any matter to which the jurisdiction of such Administrative Court or Tribunal extends. The aforesaid subsection is reproduced as under:--- 47(1) .. (a) . (b) .. "(2) Notwithstanding anything herein before contained, where any administrative Court or Tribunal is established under subsection (1), no other Court shall grant an injunction, make any order or entertain any proceedings in respect of any matter to which the jurisdiction of such Administrative Court or Tribunal extends and all proceedings in respect of any such matter which may be pending before such other Court immediately before the establishment of the Administrative Court or Tribunal shall abate on such established." (3) " The Azad Jammu and Kashmir Service Tribunal was admittedly established by the Government as per the Azad Jammu and Kashmir Service Tribunal Act, 1975, which is functional since couple of decades. The writ petition filed by petitioner is, therefore, hit by the aforementioned basic provisions of subsection (2) of section 47 of the Interim Constitution Act, 1974. 5. The contention of the learned Advocate that petitioner is performing her duties as Computer Instructor B-17 on ad hoc basis, therefore, she is not covering in the definition of a Civil Servant is misconceived. The term "civil servant" has been defined under clause (b) of subsection (1) of section 2 of the Azad Jammu and Kashmir Civil Servants Act, 1976, which speaks as follows:--- "Civil servant" means a person who is appointed to any service or hold a civil post in service of Azad Jammu and Kashmir employed in connection with the affairs of the State but does not include:-- (i) A person who is on deputation to the service of Azad Jammu and Kashmir in connection with the affairs of the Government, from the Council or the Federation or any Province of Pakistan or Authority; (ii) A person who is employed on contract or on work-charged basis, or who is paid from contingencies; (iii) A person who is a "worker" or "workman" as defined in the Factories Act, 1934 (XXV of 1934), or the Workmen"s Compensation Act, 1923 (VIII of 1923). The term "civil servant" is also defined as per clause (b) of section 2 of the Azad Jammu and Kashmir Service Tribunal Act, 1975, which is reproduced as under:--- (b) "Civil Court" means a person who is or who has been a member of a civil service of the AJ&K in connection with the affairs of the Government or who holds or has held a civil post in connection with the affairs of the Government does not include;--- (i) a person who is or who has been on deputation to the Azad Jammu and Kashmir from the Federation or any other Province of Pakistan or authority. (ii) a person who is or has been employed on contract or on work-charge basis or who is or has been paid from contingencies, or (iii) a person who is or has been a "worker" or workman as defined in the Factories Act, 1934 (XXV of 1934), or the Workmen"s Compensation Act, 1923 (VIII of 1923) as in force in Azad Jammu and Kashmir. 6. A bare reading of the statutory provisions supra make it abundantly clear that a person who is no deputation to the service of Azad Jammu and Kashmir in connection with the affairs of the Government, from the Council or the Federation or any Province of Pakistan or Authority; a person who is empowered on contract or on work charged basis, or who is paid from contingencies and a person who is a "worker" or "workman" as defined in the Factories Act, 1934 (XXV of 1934) or the Workman"s Compensation Act, 1923 (VIII of 1923) are excluded from the definition of civil servant. The petitioner is, however, holding a civil post in service of Azad Jammu and Kashmir and employed in connection with the affairs of the State, hence, covering in the definition of a civil servant. Therefore, ad hoc employees of the Government or the concerned Authority for all practical purposes are civil servants within the meaning of the Azad Jammu and Kashmir Civil Servants Act, 1976, and with the Azad Jammu and Kashmir Service Tribunal Act, 1975. The same proposition came under consideration before the apex Court of Pakistan in case titled "Muhammad Sarfaraz and 174 others v. Government of Punjab through Secretary, Education Department Civil Secretariat Lahore and others (2001 PLC (C.S.) 1224). At page 1231 of the report it was opined as under:--- "As would appear from the definition of "civil servant" contained in the Punjab Civil Servants Act, 1974 as also the Punjab Service Tribunals Act, 1974 a person who holds a civil post in connection with the affairs of the Province and is not included in the persons categorized under sub-clauses (i), (ii) and (iii) is a civil servant. An ad hoc employee is a civil servant as he holds a civil post in connection with the affairs of a province is not included in the person excluded from the definition of civil servant and a governed by the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975, having not been excluded from its operation as well as section 10 of the Punjab Civil Servants Act, 1974, having been described as a civil servant qua termination of service. The petitioners are, therefore, civil servants within the contemplation of the Punjab Service Tribunals Act, 1974." The aforesaid proposition also came under consideration before the Lahore High Court, in case titled "Shaheen Akhtar v. Government of Punjab and others" (1988 PLC (C.S.) 70), wherein at page 79 of the precedent case it was held as follows:-- "It remains to be observed that ad hoc employees of the Government have always been treated as civil servants within the meaning of the Punjab Service Tribunals Act, 1974. In this connection, reference may be advantageously be made to cases reported 1985 SCMR 1408,1983 SCMR 859, 1982 SCMR 408, 1981 SCMR 469, 1982 SCMR 46 and 1991 SCMR 2027." 7. The petitioner considered herself aggrieved from the impugned notification dated 22-12-2014. As per section 4 of the Azad Jammu and Kashmir Service Tribunals Act, 1975, she has got an alternate adequate and efficacious remedy to challenge the same before the Service Tribunal, hence the instant writ petition is also barred under subsection (2) of section 44 of the Interim Constitution Act, 1974. 8. The nub of above discussion is that finding no substance in the instant writ petition, the same is hereby dismissed in limine and consigned to record. However, petitioner will be at liberty to challenge the aforesaid impugned notification before the concerned Service Tribunal as per law. Writ dismissed in limine. AG/15/HC(AJ&K) Petition dismissed.

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