2020 PLP (C (PLC(CS))

GHULAM MUSTAFA MUGHAL, J.

The titled appeal by leave of the Court has been directed against the judgment dated 13.03.2019, passed by the Azad Jammu and Kashmir Service Tribunal in Service Appeal No.239 of 2018.

2. The facts forming the background of the captioned appeal are that a post of Shop Attendant (B-1) fell vacant in the office of Principal Agro-Technical Teachers Training Center Muzaffarabad due to retirement of Muhammad Sharif, which was advertised in Daily 'Jammu and Kashmir' on 09.12.2017. Among others, the appellant, herein, being eligible applied for appointment against the advertised post. After the test and interview, he was placed at Serial No.1 of the merit list and accordingly appointed vide order dated 19.12.2017 on the recommendations of the respective selection committee. The appellant, herein, joined his duty on the same date. Subsequently, vide notification dated 04.01.2018, the post of Shop Attendant (B-1) was re-designated as Naib Qasid (B-1) and stood shifted to the Secretariat Elementary and Secondary Education. It is stated that after re-designation and shifting of the post, the concerned Secretary cancelled the appointment of the appellant, herein, on 08.02.2018 and appointed the private-respondent, herein, against the post in question vide order dated 09.02.2018. The orders dated 08.02.2018 and 09.02.2018 were challenged by the appellant, herein, before the Azad Jammu and Kashmir Service Tribunal by way of appeal on the ground that the same have illegally been issued without providing him an opportunity of hearing. The learned Service Tribunal after necessary proceedings, through the impugned judgment dated 13.03.2019 has dismissed the appeal on the ground that the appellant has not impleaded the Selection Committee in the line of respondents who was a necessary party.

3. Ch. Muhammad Manzoor, the learned Advocate appearing for the appellant argued with vehemence that a post of Shop Attendant (B-1) was advertised by the competent authority in daily 'Jammu and Kashmir' on 09.12.2017 and the test and interview was conducted on 16.12.2017. The learned Advocate further argued that the appellant, herein, obtained the merit position and was appointed on the recommendations of the respective Selection Committee vide order dated 19.12.2017. The learned Advocate further argued that subsequently without any notice to the appellant, herein, the Secretary Education vide notification dated 04.01.2018, re-designated the post of Shop Attendant (B-1) as Naib Qasid (B-1) and also terminated the service of the appellant, herein, vide order dated 08.02.2018 without following the due process of law. The learned Advocate submitted that without proper advertisement, the Secretary Education appointed the private-respondent, herein, vide order dated 09.02.2018 i.e. on the very next day of cancellation of the appointment of the appellant, herein, hence, the appointment of the private-respondent, herein, is fishy, dubious and illegal. The learned Advocate further submitted that the learned Service Tribunal has illegally dismissed the appeal without attending the controversy in its true perspective. He further submitted that the appointment of the appellant, herein, was made by the competent authority and the order was duly acted upon. He added that the appellant, herein, also received the salary for the post in question, therefore, the notification of re-designation of the post and further appointment on the same was illegal.

4. Conversely, Raja Ayaz Ahmed Khan, Assistant Advocate-General and Ch. Shoukat Aziz, Advocate appearing for the respondents argued that the post against which the appellant, herein, was appointed, was vacated by his father who stood retired at his own request on 06.12.2017. They further argued that the advertisement to fill in the post vacated by the father of the appellant, herein, was issued on 09.12.2017 and the process of selection was completed within 4 to 7 days of the advertisement which is totally against the rules. They further argued that National Agro-Technical Teachers Training Center Muzaffarabad was abolished and the posts were shifted to the Secretariat Elementary and Secondary Education, therefore, the appointment of the appellant, herein, was rightly cancelled by the competent authority. They added that cancellation of the appointment of the appellant, herein, was lawful because no notice was required to be served upon for vacating an ab initio void appointment order. They submitted that the appointment of the private-respondent, herein, has been challenged by the appellant through appeal before the Azad Jammu and Kashmir Service Tribunal, therefore, the Selection Committee on whose recommendations, the appointment had been made, was a necessary party and without arraying the same the appeal was not competent. They further submitted that the impugned judgment of the learned Service Tribunal is perfectly valid and justified on facts and law and hardly requires interference by this Court.

5. We have heard the learned Advocates representing the parties and have gone through the record of the case with utmost care. A perusal of the record reveals that previously, the post against which the appellant, herein, was appointed, was available in National Agro-Technical Teachers Training Center Muzaffarabad. It appears from the record that for appointment of the appellant, herein, on the said post, his father Muhammad Shareef sought retirement himself and was retired on 06.12.2017, on his own request. The post was advertised in daily 'Jammu and Kashmir' on 09.12.2017 and the appellant, herein, was appointed on 19.12.2017. It is astonishing that for appointment against the advertised post only 3 candidates appeared, whereas, hundreds of people in the present time are jobless. The competent authority re-designated the post vide order dated 04.01.2018 as the relevant institution was abolished. The appointment of the appellant, herein, was vacated vide order dated 08.02.2018 and the private-respondent, herein, was appointed on 09.02.2018 on the very next day. The process of selection of the private-respondent, herein, also appears to have been made in a fishy manner. The authorities while making the appointments of the appellant and the private-respondent, herein, have violated the rule of transparency, merit and good governance and they tried to appoint the person of their own choice.

6. It may be stated here that appeal before the Service Tribunal challenging the legality and correctness of an appointment order is not competent. Our this view finds support from the case reported as Dr. Ahmed Salman Waris, Assistant Professor, Services Hospital, Lahore v. Dr. Naeem Akhtar and 5 others [PLD 1997 Supreme Court 382], wherein, at page 392 of the report, it was observed as under:- "

15. The question which now arises for consideration is, whether an appeal by the appellant before the Tribunal in these circumstances was competent under the law. While discussing the scope of an appeal under section 4 of the Act, we pointed out that one of the jurisdictional requirements of such an appeal is, that it must be filed by a civil servant as defined in the Act. Another jurisdictional requirement of such an appeal is, that the grievance of the aggrieved civil servant must relate to a final order of departmental authority whether original or appellate. In the case before us, the appellant was a candidate for the post of Assistant Professor of Urology along with Dr. Naeem and Dr. Sahu before the Commission. The latter mentioned gentlemen were selected and recommended for appointment by the commission while the appellant was not selected. The appellant having applied but not selected for the post could not acquire the status of a civil servant within the meaning of the Act. He was, therefore, in our view, not qualified to file an appeal before the Tribunal. Apart from it, the appellant besides questioning the appointments of Dr. Naeem and Dr. Sahu by the Government, had also challenged the selection/recommendation by the Commission of Dr. Naeem and Dr. Sahu, for the post of Assistant Professor of Urology, which could not be brought under challenge before the Tribunal in a service appeal as the above action of the Commission did not fall within the category of the final order of a departmental authority, whether original or appellate." The same view was reiterated in the case reported as Munir Qadir v. Chairman, PSC and 4 others [2003 PLC (C.S.) 743], wherein, at page 745 of the report, it was held as under:- "

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, 1998 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 the High Court jurisdiction." The appointment order dated 09.02.2018 could only be challenged through writ petition before the High Court and appeal before the Service Tribunal on any ground whatsoever was not competent. So far as, the appointment of private-respondent, herein, is concerned, that also appears fishy and maneuvered.

7. Thus, in the circumstances of this case, we are inclined to set aside the appointment order of the private-respondent, herein, dated 09.02.2018. The appointment order of the appellant, herein, cannot be restored as the same was also illegal and has been made when the process of shifting the post was in progress. The department is, therefore, directed to initiate the process of appointment to the post in question afresh in a transparent manner and appoint a suitable candidate strictly in accordance with law. The appeal stands disposed of in the manner indicated above. ZC/3/SC(AJ&K) Appeal disposed of.