Ch. Muhammad Ibrahim Zia, J.--The captioned appeal with leave of this Court is filed against the order of Service Tribunal dated 8.12.2010 whereby the appeal filed against the departmental order dated 23.7.2010 has been dismissed.
2. Precise summary of facts giving rise to this appeal are that a vacancy of Lab Assistant, Grade B- 7 fell vacant in Model Science College, Muzaffarabad. The appellant claimed that he was temporarily appointed against this post vide order dated 25.1.2006. Thereafter, the Principal Model Science College, constituted a Selection Committee and on the recommendations of Selection Committee, the appellant's service was regularized vide order dated 2.4.2008. The departmental authority, appointed Respondent No, 5 against the same post vide order dated 8.4.2008. The contesting persons filed writ petitions in the learned High Court. The learned High Court, without final adjudication of the matter, directed the resolution of issue by the departmental authority. In compliance of the direction of the High Court, departmental authority. i.e the Secretary Education Colleges, on 23.7.2010, issued following orders:-- {{URDU TEXT}} The appellant, feeling aggrieved, filed appeal No, 414 before the Service Tribunal which has been dismissed through the impugned judgment.
3. Kh. Tariq Saeed Advocate, the learned counsel for the appellant, after brief statement of facts, forcefully objected the impugned judgment on the ground that the appellant's appointment was made under prescribed mode according to the rules of Azad Kashmir Education Department, Subordinate Service (Collegiate Branch) Rules, 1975. The Service Tribunal has wrongly held that the appellant's appointment, without advertising the post, is illegal because according to the rules holding the field, the advertisement of the post was not necessary. He further contended that Respondent No, 5 has also been appointed in sheer violation of law and rules and the Service Tribunal fell in error while protecting his appointment order. Therefore, the judgment of Service Tribunal is not maintainable thus, this appeal merits acceptance.
4. While controverting the arguments of the learned counsel for the appellant, M/S Kh. Muhammad Naseem and Raza Ali Khan, Advocates, the learned counsel for the respondents, forcefully defended the impugned judgment on the ground that the argument of the learned counsel for the appellant, regarding the Azad Kashmir Education Department Subordinate Service (Collegiate Branch) Rules, 1975, is totally misconceived. Neither the rules were enforced nor were notified. Copy of draft rules brought on record is mere piece of paper without having any sanction of competent legislative or rule making authority. Even otherwise in this draft, there is also a provision in Rule 12 that in all matters not expressly provided for in these rules, members of the service shall be governed by such rules as have been or may hereafter been prescribed by Government and made applicable to them. Thus this provision clearly speaks that in the matter of appointment, the general rules, governing the mode of appointments are applicable. The appellant's appointment was neither regular nor made according to law. He was just a temporary employee and the departmental authority has rightly passed the impugned order. Being temporary employee, he has got neither cause of action nor right of appeal because only a permanent civil servant has got right of appeal, therefore, the impugned judgment does not suffer from any infirmity and this appeal is not maintainable.
5. We have heard the learned counsel for the parties and have also gone through the record.
According to admitted facts, the initial appointment order of the petitioner was issued without advertising the post and this order was mere "Iwzi taqaruri" {{URDU TEXT}} . The subsequent order, also on the face of it, appears to be issued against the prescribed mode of appointment. The contention of the learned counsel that his appointment was made under the Azad Kashmir Education Department, Subordinate Service (Collegiate Branch) Rules, 1975, irrespective of the fact that these are mere draft rules and not enforced, has no force because under the provisions of Section 49 of The Azad Jammu and Kashmir Interim Constitution Act, 1974, The Azad Jammu and Kashmir Civil Servants Act, 1976 has been enforced and in furtherance of this Act, The Azad Jammu and Kashmir Civil Servants (Appointment & Conditions of Service) Rules, 1977 have been made.
Under Rule 16 of Rules, 1977, advertisement of vacancy is precondition for the appointment. The view expressed by the learned Service Tribunal that the appellant's initial appointment was made without advertising the post, is quite consistent with law of the land. Moreover, the argument of the learned counsel for the appellant is not tenable because the basic appointment order on the strength of which appellant claims that he has been permanently appointed, is an "Iwzi Taqaruri" {{URDU TEXT}}. According to principle of law and statutory provisions, no person appointed as "Iwzi" {{URDU TEXT}}can claim permanent induction against the post without following due process of law. The appellant has failed to bring on record any valid order to substantiate his stand that he has been permanently appointed.
6. Under Section 4 of the Azad Jammu and Kashmir Service Tribunal Act, 1975, right of appeal is available only to a civil servant who is permanently appointed against a permanent post. In Clause 'b' of Section 2 of the Azad Jammu and Kashmir Civil Servants Act, 1976, the term " civil servant" has been defined as following:-- Definitions
1. .............................................................
(a) ...........................................................
(b) "Civil Servant" means a person who is appointed to any service or holds a civil post in service of Azad Jammu and Kashmir employed in connection with the affairs of the State, but does not include--
(i) a person who is on deputation to the service of Azad Jammu and Kashmir in connection with the affairs of the Government from the Council or the Federation or any Province of Pakistan or Authority;
(ii) a person who is employed on contract or on work charge basis or who is paid from contingencies;
(iii) a person who is a "worker" or "workman" as defined in the Factories Act, 1934 (XXV of 1934) or the Workmen's Compensation Act, 1923 (VIII of 1923).] Sub-clause (ii) of clause (b) excludes a person, who is employed on contract or on work charge basis or who is paid from contingencies. "Iwzi" {{URDU TEXT}} appointment order of the petitioner clearly reveals that he was paid from the contingency.
7. The same definition has been incorporated in clause 'b' of Section 2 of the Azad Jammu and Kashmir Service Tribunal Act, 1975. Thus, in view of the statutory provisions, a person who is not permanently appointed against the, post or who is paid from contingencies is not a civil servant for the purpose of right of appeal before the Service Tribunal. Therefore, the Service Tribunal has rightly concluded that the appellant has got no locus standi to file appeal before the Service Tribunal. As this point goes to the root of the case and after drawing conclusion that the appeal before the Service Tribunal filed by the appellant is not competent, recording of findings on other ancillary points become unnecessary.
Thus, for the reasons stated hereinabove, finding no force, this appeal is dismissed.