2001 PLP (C (PLC(CS))

MUHAMMAD YUNUS SURAKHVI, J.

This appeal, by way of leave of the Court has been directed against an order passed by the Service Tribunal on. 27-5-2000, whereby pro forma-respondent No.21, Ishtiaq Ahmed Gilani, has been allowed to be impleaded as one of the appellants in the appeal before the Service Tribunal. .

2. The necessary facts, giving rise to the present appeal, are that Muhammad Riaz, Assistant Sub-Inspector Police filed an appeal before the Service Tribunal against the order passed by Inspector-General of Police dated 27-5-1999, whereby he rejected the appeal filed by the said respondent and maintained the seniority list already issued. The respondent impleaded 17 private respondents and Ishtiaq Ahmed Gilani as pro forma-respondent. The appeal was tiled on 20th October, 1999. On 2nd March, 2000 Ishtiaq Ahmed Gilani, pro forma-respondent No.21 mentioned in the appeal, filed an application that he may be transposed as an appellant. This application has been accepted vide the impugned order of the Service Tribunal dated 27-5-2000. The appellants herein are impleaded as respondents 7 and 10 in the appeal pending before the Service Tribunal. They have filed the present appeal to challenge the order of transposition of pro forma-respondent Ishtiaq Ahmed Gilani in the line of appellants before the Service Tribunal.

3. On behalf of appellants it has been urged by Mr. Ghulam Mustafa Mughal, the learned counsel for appellants, that there is no provision of transposition in the Service Tribunals Act. He contended that section 5 of the Service Tribunals Act lays down that Service Tribunal shall have all the powers of a Civil Court but the Code of Civil Procedure is not applicable to the Service Tribunal. It is contended by the learned counsel for the appellants that the procedure to be followed by the said Tribunal is laid down in Azad Jammu and Kashmir Service Tribunals (Procedure) Rules, 1976 promulgated by the Government in exercise of powers conferred by section 10 of the Service Tribunals Act, 1975. It is further contended by Mr. Ghulam Mustafa Mughal that if pro forma-respondent Ishtiaq Ahmed Gilani wanted to file appeal it would have been hit by the bar of limitation. The learned counsel vehemently contended that Ishtiaq Ahmed Gilani had not departmentally challenged the seniority list and even for that reason he could not become an appellant in the case. .

4. Sardar Rafique Mahmood Khan, the learned counsel for respondents Nos. l. and 2, by controverting the arguments raised by the learned counsel for the appellants, contended that under, section 5 of the Service Tribunals Act it had all the powers of a Civil Court. The matters adjudicated upon in the Service Tribunal, according to the learned counsel, are governed by the Code of Civil Procedure which is a general law and has been made applicable to the Service Tribunal. The teamed counsel contended that since Ishtiaq Ahmed Gilani was impleaded as a pro forma-respondent there was no bar in impleading him in the line of appellants. Thus the impugned order of Service Tribunal suffered from no illegality or infirmity. The learned counsel in support of his contentions relied upon a case reported as Syed Subtain Hussain Kazmi v. Syed Tasawar Hussain Shah and another (1999 SCR 164). .

5. After hearing the respective contentions of the learned counsel for the parties and perusing the record, it may be stated that in para. No.8 of the memo. of appeal filed by Muhammad Riaz, Assistant Sub-Inspector Police, before the Service Tribunal, it has been specifically stated by him that the date of his induction in service and confirmation Js prior to all the respondents as such he deserves to be entered in the seniority list at Serial No. l in accordance with the rules. This averment shows that respondent Muhammad Riaz by filing the appeal before the Service Tribunal claimed his seniority as against all the respondents including the pro forma-respondent Ishtiaq Ahmed Gilani. It is nowhere stated in the memo of appeal filed by respondent Muhammad Riaz that his interests and that of Ishtiaq Ahmed Gilani were equal or common in any way. In our view if Ishtiaq Ahmed Gilani had filed an appeal that would have been hit by the bar of limitation. Therefore, he has adopted a course of illegal device to circumvent the law. Ishtiaq Ahmed Gilani, the said pro forma-respondent, even did not departmentally challenge the seniority list and for that reason also he could not be arrayed in the line of appellants in the case .

6. In the case cited by Sardar Rafique Mahmood Khan, the learned counsel for respondents, reported as Syed Subtain Hussain Kazmi v. Syed Tasawar Hussain Shah and another (1999 SCR 164) it was observed by this Court as under:-- "A perusal of the Service Tribunals Act would indicate that although Service Tribunal enjoys the powers of a Civil Court yet this does not imply that all the provisions contained in Civil Procedure Code are applicable to the proceedings before it without having regard to the substantive provision of the Act which envisages that, an appeal by an aggrieved civil servant to the Service Tribunal is competent only after exhausting the departmental remedy within prescribed period of limitation. Thus, it can be said that, irrespective of the condition laid down in section 4 of the Service-Tribunals Act, a person, can be transposed as an appellant from the line of the pro forma-defendants merely because he was impleaded as such. Obviously, if an aggrieved civil servant fails to exhaust the departmental remedy, he is debarred to move Service Tribunal for the redressal of his grievance." The above cited-case instead of advancing the case of respondents, squarely applies to the case of appellants.

7. In the light of what has been stated above, by accepting the appeal, we quash the impugned order recorded by the Service Tribunal on 27-5-2000. In the circumstances of the case there will be no order as to costs. H.B.T./148/SC(AJ&K) Appeal accepted.