' SYED JAMSHED ALI, J.--- This order shall dispose of Civil Petitions Nos.786, 787 and 788-P of 2004 because common questions of law and fact are involved therein. The facts of the cases are briefly noted hereunder.
2. Qamar Dost Khan, respondent in C.P. No,786-P of 2004, Gul Zaman Khan, respondent in C.P.
No,787-P of 2004 and Saeed Anwar in C.P. No,788-P of 2004 claimed to have been appointed as PTC teachers vide separate orders dated 23-4-1998. Their grievance in the appeals before the N.- W.F.P. Service Tribunal was that the departmental authorities were not issuing any posting order.
Qamar Dost Khan, respondent in C.P. No,786-P of 2004, stated to have made a representation on 4- 12-1999 to the In charge Monitoring Cell and Complaints and a departmental representation on 21- 10-2002 for a suitable posting and then approached the learned N.-W.F.P. Service Tribunal by filing appeals on 1-2-2003.
2-A. The appeals were contested on a number of grounds including that appeals were barred by time, and these were not maintainable as the respondents were not civil servants, since they had never taken over the charge of the post. On facts, the position taken was that the orders of appointment of the respondents were invalid and dubious. As far as respondents, Gul Zaman Khan, respondent in C.P. No,787-P of 2004 and Saeed Anwar, respondent in C.P.No,788-P of 2004, are concerned, apart from the objections noted above, an additional objection was taken that they were not duly qualified on the date of submission of the applications.
3. The learned Service Tribunal, however, relying on their own judgment in Appeal No,2879 of 2000 titled Nasrullah v. D.E.O. (M) Primary, Dir Lower and others, allowed all the three appeals notwithstanding their observation that "it is the burden of respondent-department to verify the authenticity of the claims of the appellants through fresh departmental enquiry, if they so desire".
4. The learned Additional Advocate-General, submits that the departmental appeal lay only against a final order and in these cases there was no order to be assailed before the learned Service Tribunal. The respondents were not permitted to join the posts because their appointment orders were forged and bogus and, therefore, they never acquired the status of a civil servant to invoke section 4 of the N.-W.F.P. Service Tribunals Act, 1974 and that the so-called departmental appeal was filed by Qamar Dost Khan on 21-10-2002 and that too not against any order, it was for directing a posting. In the other two cases, he submits that no representation was filed, even it be assumed that respondents could invoke the jurisdiction of N.-W.F.P. Service Tribunal. In case of Gul Zaman Khan and Saeed Anwar, he invited our attention to the copy of the PTC certificates, showing announcement of their result on 24-2-1998 while the public notice through press, inviting applications was issued on 3-10-1997 and the closing date was 13-10-1997. It was maintained that since they were not eligible, there was no question of their being summoned for test and interview for selection to the post of PTC teachers. He submits that no record of appointment of these respondents is available with the department.
5. The learned counsel for the respondents first addressed us in C.P. No,786-P of 2004. On the basis of pay rolls of a number of officials whose names find mention in the order, dated 23-4-1998 (in which name of respondent Qamar Dost also appears) such as Muhammad Rasheed, Asghar Khan, Muhammad Saleem Khan, Muhammad Ishaq and Inayat Ullah which were placed on record to contend that the aforesaid officers in the said order were in receipt of salaries which was by itself sufficient to defeat the plea of the departmental authorities that the order, dated 234-1998, was a forged document. Before we proceed further, we would like to observe here that the departmental representative had explained that the basis of this consolidated order, dated 23-4-1998 was separate orders, the copy of the orders being relied upon contain thirty-two so-called selectees but as a matter of fact sixteen .Out of them were genuine selectees and the department had record of those sixteen. Learned counsel for the respondents strenuously relied on the case of Nasrullah Khan relied upon by the learned Service Tribunal and Secretary to the Government of N.- W.F.P., Agriculture Department v. Asmatullah Khan and others 2003 PLC (C.S.) 1289 and Muhammad Amjad Malik v. Pakistan State Oil Co. Ltd. And others 2005 PLC (C.S.) 318 to contend that the rule of consistency was rightly followed by the N.-W.F.P. Service Tribunal in allowing the appeal of the respondents. He urged that if the record was not available with the department, respondents should not be made to suffer. As far as Gul Zaman Khan and Saeed Anwar Khan are concerned, he submits that before the date of their selection, they had become eligible and, therefore, their selection was in order. As far as objection of non-maintainability of the appeals before the learned Service Tribunal is concerned, he contends that no such objection was taken before the learned Service Tribunal. He, however, relied on rule 27 of the N.-W.F.P. Service Tribunals Rules, 1974; which according to his reading, gave jurisdiction to the learned Service Tribunal to entertain and adjudicate upon the grievance of the respondents. He maintains that the respondents had submitted joining reports and had thus, become civil servants.
6. Exercising his right of rebuttal, the learned Additional Advocate-General relied on Muhammad Zahid Iqbal and others v. D.E.O. Mardan and others 2006 SCMR 285. Explaining the case of Nasrullah, he submitted that the fact of the said case were distinguishable because there was no allegation of fraud and forgery against Nasrullah.
7. Right of appeal has been created by section 4 of the N.-W.F.P. Service Tribunals Act, 1974. It will be appropriate to reproduce the said section:-- "Appeal to Tribunals.--- Any civil servant aggrieved by any final order, whether original or appellate, made by a departmental authority in respect of any of the terms and conditions of his service may, within thirty days of the communication of such order to him or within six months of the establishment of the appropriate Tribunal having jurisdiction in the matter: Provided that: (i)..........................................
(ii)...................................................................
(iii)................................................. (Underlining is ours)"
' A plain reading of the said provision shows that it is only against a final order, original or appellate, against which an appeal lies to the N.-W.F.P. Service Tribunal. The powers of the Tribunal are given in section 7 of the said Act, according to which "the Tribunal may on appeal, set aside, vary or modify the order appeal against." (underlining is ours). Rule 27 of N.-W.F.P. Service Tribunals Rules, 1974 which is being relied upon by the learned counsel for the respondents is also reproduced hereinbelow:-- "Additional powers of the Tribunal.--- Nothing in these rules shall be deemed to limit or otherwise affect the powers of a Tribunal to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Tribunal."
' The powers contained in rule 27 are not intended to enlarge the scope of section 4. A careful reading of the said rule shows that this power will be available to the Tribunal while hearing an appeal and the question of maintainability of an appeal is to be answered with reference to sections 4 and 7 of the Act. There has not been such an order within the contemplation of section 4 which could be brought under challenge be tore the learned N.-W.F.P. Service Tribunal. The relief claimed by the respondents through the appeals was in the nature of a command to the departmental authority to give them suitable posting. In essence, they were seeking issuance of writ of mandamus which jurisdiction the learned Tribunal did not possess.
8. The contention of the learned counsel for the respondents that the question of non- maintainability of the appeals before the learned Tribunal, in the absence of a final order of the departmental authority, not having been raised before the learned Tribunal, could not be allowed to be raised before this Court, has not impressed us for the reason that question of jurisdiction goes to the root of the case and could be raised for the first time even while appearing before the highest Court of the country. It is a fundamental principle of law that a Court or Tribunal has to decide the lis before it in accordance with law and parties are not bound to engage a counsel.
Justice according to law is the duty of the Court which can neither be abdicated in favor of the whims or ignorance of the litigants or their lawyers nor it be avoided or evaded on the pretext that a question of law going to the root of the case was not raised promptly. In making the above observations, I am fortified by the following observations of this Court in Muhammad Sarwar v. The State PLD 1969 SC 278.
"It appears that the Judges were not properly advised, but it falls to be said that there is a well- known adage that a Judge must wear all the law of the country on the sleeve of his robe."
(underlining is ours).
' The rule laid down was reiterated in Board of Intermediate and Secondary Education, Lahore through its Chairman and another v. Mst. Salma Afroze and 2 others PLD 1992 SC 263. The only constraint where a party could be said to be estopped to raise question of jurisdiction would be where the party itself invoked jurisdiction of Court or Tribunal and on the result being unfavorable repudiates its own action and throws challenge to the jurisdiction of the said Court or Tribunal. But even in such a case, it will depend on the facts of that case. Yet another case where question of jurisdiction may not be entertained for the first time before superior Courts could be when the equities are plainly against the person raising objection and if upheld the consequence would be to perpetuate an ill-gotten gain or to bring about a plainly unjust consequence. Examined on the basis of the above stated principles, we do not see that the objection to jurisdiction should be shut even though raised for the first time before this Court. We find yet another reason for permitting the objection to be raised and that is to clarify the scope of jurisdiction of the learned Tribunal lest the impugned judgment becomes a precedent. We may add a word of caution i,e, that this judgment only deals with the subject-matter jurisdiction and not the territorial or pecuniary jurisdiction.
Objections to the said jurisdictions are regulated respectively by the Code of Civil Procedure and the Suits I Valuation Act.
9. We may also add that jurisdiction is conferred by either Constitution or law. Consent or acquiescence has never been considered as a factor conferring jurisdiction. The judgments of this Court in support of the above view-point are Maulvi Aziz-ur-Rehman v. Ahmad Khan and others 2004 SCMR 1622; Ali Muhammad and others v. Muhammad Shafi and others PLD 1996 SC 292; Shagufta Begum v. The Income Tax Officer, Circle XI, Zone-B, Lahore PLD 1989 SC 360 and Haji Abdullah Khan and others v. Nisar Muhammad Khan and others PLD 1965 SC 690.
10. Accordingly, these petitions are converted into appeals, are allowed and the judgment of the learned Service Tribunal is set aside.