2003 PLC (C (PLP)

BASHARAT AHMAD SHAIKH, J.

The appellant filed a writ petition in the High Court to challenge the actions/orders of the Public Service Commission and also seeking consequential notification in the Government order by which the appointments were made by accepting the recommendations made by the Public Service Commission, but the High Court has dismissed the writ petition in limine on the short ground that the dispute raised in the writ petition related to terms and conditions of service of the writ petitioner over which the High Court had no jurisdiction in presence of a Service Tribunal. This appeal has been filed to challenge the judgment of the High Court.

2. The brief and relevant facts may be thus stated. In October, 1996 the Public Service Commission invited applications for the post of Social Welfare Officers/Assistant Directors (B-17). After holding test and interview and completing other formalities the Public Service Commission issued a handout notifying the names of five successful candidates belonging to Muzaffarabad who were to be appointed against the post reserved for that District: The name of the appellant was shown at No.3 in order of merit, The handout was issued on 3rd December, 1997. Subsequently the merit list was modified and the name of the appellant was brought down from 3rd place to the 5th place. The recommendations of the Government were made in light of the modified merit list. The appellant filed an application, which is called by him as a review petition, but it was rejected by the Public Service Commission. The Government accepted the recommendations of the Public Service Commission and issued a notification on 3rd June, 1998 in which all the five persons belonging to Muzaffarabad who were included in the merit list, were appointed as Assistant Directors/Social Welfare Officers: In the notification the name of the appellant appears at serial No.5 which is the bottom of the list.

3. We have heard the learned counsel for the parties. In our view the High court fell in error in holding that the writ petition filed by the appellant was not maintainable before the High court. Under section 4 of the Service servant against a final order made by a Departmental authority in respect of any of the terms and conditions of his service but in the present case, the appellant could not file appeal before the Service Tribunal for. the reasons which follow.

4. Appeal before the Service Tribunal can be filed only against a final order passed by a Departmental Authority but the Service Commission is not a Departmental Authority as is evident from the definition of that phrase given in the explanation attached to section 4 of the Service Tribunal Act . It is as follows:-- "Explanation.--In this section 'departmental authority' means any authority other than a Tribunal which makes an order in respect of I any of the terms "conditions of civil servants."

5. The action of the Tribunal which gave cause of action to the appellant was taken when the appellant was only a private citizen and was not a civil servant. He became a civil servant after 3rd of January, 19.98 when his appointment was ordered. Since he was not a civil servant it cannot be said that the modification in the merit list carried out by the Public Service Commission was in respect of terms and conditions of a civil servant. It follows that while modifying the merit list and the Public Service Commission did not deal with terms and conditions of a civil servant was, therefore, not a departmental, authority. Even otherwise the term "departmental authority" cannot include the Public Service. Commission which deals with private citizens who aspire to become civil servants and has no nexus With civil servants, Therefore, we are quite clear that if the appellant had filed appeal before the Service Tribunal it would have been dismissed at the threshold because the Tribunal, has .no jurisdiction to entertain appeals against actions of the Public Service Commission. According to section 47 of the Azad Jammu and Kashmir Interim Constitution Act the jurisdiction of the High Court is only ousted in matters to which the jurisdiction of a Service Tribunal extends. Since the jurisdiction of the Service Tribunal does not extend to an order/action of the Public Service Commission, there is no question of ouster of High Court jurisdiction.

6. The writ petition was filed by the appellant in the High Court on 26th January. 1999 when he had already become a civil servant but that does not change the legal position. Apart from the .fact that cause of action had arisen to the appellant when he was not a civil servant, he could not file appeal before the Service Tribunal against the Public Service Commission even when he had become a civil servant. The fact that the appellant had become a civil servant did not change the position that the order by which he was feeling aggrieved had been passed by a body which was not a departmental authority.

7. Wither aspect of the matter needs to be noticed. In his writ petition the appellant, apart from seeking annulment of the actions/orders of the, Public Service Commission, also sought the direction to the Government to correct the notification of appointment in which the appellant was placed at No.5. According to rule 8 of the Azad Jammu and Kashmir Civil Servants (Terms and Conditions of Service) Rules, 1977 the seniority of a civil servant at the time of his induction in service is based on the order of merit drawn by the Public Service Commission. Therefore, the prayer relating to the Government is consequential in nature which would follow if the modification carried out by the Public Service Commission is found to be without lawful authority. Consequently the appeal is accepted and order of the High Court is vacated. The writ petition is admitted to regular hearing and shall be decided by the High Court to accordance with law. H.H.T./225/SC(AJ&K) Appeal accepted/order accordingly.