1992 PLP (C (PLC(CS))

When a civil servant had challenged the right, qualification or mode of appointment of another civil servant without claiming any relief for himself, or when the power of any departmental authority was challenged on the ground of his traveling beyond the jurisdiction in appointing a civil servant, the jurisdiction in that case did not vest in the Service Tribunal, as it could be invoked only when aggrieved person's terms and conditions pf service were affected and not otherwise. The bunch of Forest Officers in present case had challenged the authority of the Government in travelling beyond the rules by appointing specified respondent as Deputy Conservator of Forests (D.F.O.) and his qualification in holding the post, without claiming any relief for themselves, or complaint of their terms and conditions of service being affected. They had no alternate remedy, except by invoking the jurisdiction of the High Court. Moreover, an appeal before the Service Tribunal was also excluded in a case where- a person is declared fit to be appointed or to hold a particular post, as the specified respondent had been. (b) Azad Jammu and Kashmir Civil Servants Act, 1974

S. 9

Government's power to post or transfer a civil servant anywhere against any post was subject to, the law and rules framed thereunder

Liability of civil servant to serve on any post would not absolve him of possessing necessary qualifications for the post, nor would Government be authorised to post or appoint a person of general qualification against professional post-- Provision of S. 9; Azad Jammu and Kashmir Civil Servants Act, 1974, would not apply to professionals, such as Engineers, Doctors, Natural Scientists etc. except inter se transfer

Respondent being in possession of various degrees in social sciences who had been appointed against a post in Forest Department for which post Graduate degree in Natural Sciences had been prescribed as the necessary qualification was ordered to cease to hold the office of Divisional Forest Officer and was restrained from discharging any of the functions, rights (c) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)

S. 44

Unauthorised occupation of a public office

Locus standi to challenge

Any person can move the High Court to challenge the unauthorised occupation of a public office

High Court on any such application would not merely see whether the incumbent was holding the office under the order of a competent authority, but would go beyond that and see as to whether he was' legally qualified to hold the office or to remain in the office; Court would also see if statutory provisions were violated in making the appointment

Invalidity of appointment could arise not only from want of qualifications but also from violation of legal provisions for appointment-- Person seeking redress need not be an aggrieved person

Provision of S.44(2)(b)(ii) of the Interim Constitution Act authorises, rather obliges the High Court, to require a person holding a public office to show under what authority of law he claims to hold that office. Kh. Noorul Amin v. Col. (Retd.) Muhammad Naqi Khan PLD 1990 AJ&K 42 ref. (d) Azad Jammu and Kashmir Civil Servants Act, 1974

S. 9

Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S. 44

Person not possessing necessary qualification for the specified post appointed to hold such post

High Court deprecated departure from the Rules

Even a slightest departure from the Rules would gradually lead to complete departure and ultimately lawlessness. Khawaja Shahad Ahmad for Petitioners. M/s. Muhammad Akram Khan and Sardar Muhammad Sadiq Khan, Addl. A: G. for Respondents.