1. GHULAM MUSTAFA MUGHAL, CJ. --- Through this petition filed under Section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, an order dated 20.06.2007 passed by the Director General Local Government and Rural Development Azad Jammu and Kashmir has been challenged for having been passed without lawful authority.
2. Facts forming the background of the captioned petition are that Director General Local Govt. And Rural Development advertised 04 posts of Secretaries B-05 in daily "Nawa-i-waqt on 24.04.2007.
3. Among others petitioners applied for appointment against one of the posts and appeared before the Selection Committee for test and interview. It is alleged that petitioner No. 1 is B.Com. Whereas petitioner No. 2 is Intermediate but official respondents appointed private respondent No. 5 who is Matriculate. As merit prepared by the Selection Committee was not according to the expectation of the petitioners, hence, they applied for copy of the same and also made an application to respondent No. Herein, for rechecking of the papers who, after scanning the record found that papers of the petitioners have not been checked properly. After cancelling the appointment of the private respondent, respondent No. 1 decided to re-advertise the post of Secretary, Union Council Chowkiyan Tehsil Pallandri District Sudhnooti and also initiate proceedings against the officer who was assigned the duty of checking papers vide order dated 20.06.2007 and the appointment of private respondent was also cancelled for having been made without merit. Petitioners, herein, have challenged the order dated 20.06.2007 partly on the ground that re-advertisement of the post cannot be made because it was enjoined upon the respondents to prepare the melt list after checking the papers and appoint the meritorious candidate.
4. Private respondent has contested the petition by filing written statement, wherein, it is pleaded that petitioners have no locus standi to file the instant writ petition. It is submitted that he applied for appointment in pursuance of advertisement against the post of Secretary Union Council Chowkiyan and secured first position in the test and interview and in view of his merit has been appointed. It is further stated that petitioners with mala fide intention and on the basis of political influence are trying to get his appointment cancelled.
5. Official respondents have filed separate written statement through Additional Advocate General. In para 4 of their written statement they have admitted that after receiving different complaints the papers were rechecked and it transpired that the same has not been marked properly, .Therefore, the appointment of private respondent was cancelled and it was decided to re-advertise the posts.
6. Sardar Muhammad Habib Zia, the learned Advocate appearing for the petitioner, inter alia, argued that the instant writ petition was admitted for regular hearing vide order dated 17.12.2007 and on the same date Director General, Local Government was directed by the Court to produce the record of the test and interview regarding the post in question on the next date of hearing. The record was produced before the Court and the complaint of the petitioner was found correct, whereupon, Director General Local Government was directed to re-examine the papers and place amended merit list before the Court on 04.07.2008. The Court also suspended the appointment order of the private respondent. The learned Advocate contended that in view of rechecking of the papers the petitioner No. 1 has attained merit position and is liable to be appointed as such whereas the respondents have re-advertised the post which action is illegal. The learned Advocate submitted that petitioners have no alternate remedy for redressal of their grievance except to invoke the extraordinary jurisdiction of this Court.
7. Syed Mushtaq Hussain Gillani, the learned Advocate for the private respondent contended that the appointment of the private respondent was cancelled, whereupon, he filed an appeal before the Service Tribunal and the learned Tribunal has reinstated him. He argued that against that judgment petitioner, herein, has filed leave to appeal before the apex Court, therefore, the proper course for the petitioners was to make an application before the Service Tribunal for impleading them in line of respondents. The learned Advocate contended that after joining service, private respondent, herein, became a civil servant and after cancellation of his appointment he has rightly invoked the jurisdiction of the Service Tribunal. The learned Advocate stated that in pursuance of the judgment of. Service Tribunal the petitioners are not entitled to any relief. In support of his submissions, the learned Advocate placed reliance on cases titled "Muhammad Tariq Amin and 3 others v. Muhammad Hussain and 3 others" [1999 SCR 317] and "Habibullah Ganaie v. Wajahat Rashid Baig and others" [1999 S.C.R. 429].
8. I have heard the learned Advocates for the parties and gone through the record of the case.
9. A perusal of the record reveals that the captioned petition was admitted for regular hearing vide order dated 17.12.2007 and Director General was also directed to produce the record of the test and interview conducted by the appropriate Selection Committee. The record was produced before the Court on 20.06.2008. It was transpired from the record that the papers of the petitioners were not marked properly, hence, vide order dated 20.06.2008, the Director General was directed to recheck the papers properly and place before the Court amended merit list. The amended merit list was placed, wherein, petitioner No. 1 has secured merit position against the post of Secretary Union Council B-07. The order dated 20.06.2008 was assailed before the Supreme Court by the private respondent through PLA No. 18/2008 but the same was withdrawn by him on 20.07.2010. Copy of the judgment of the apex Court is placed on the record. It is proved from record that the appropriate authority/Selection Committee had not properly checked the papers, therefore, the merit prepared by the said Committee was illegal. The contention of the learned Advocate for the private respondent that jurisdiction of this Court is barred in view of Section 47 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 read with Section 4 of the Service Tribunal Act, 1975, in the circumstances of this case is devoid of any force. Under Section 47 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 the Government is competent to establish one or more Administrative Courts and Tribunals to exercise exclusive jurisdiction in respect of the matters for which the Tribunal is established. For carrying out the command of the constitution, the Azad Jammu and Kashmir Service Tribunal has been established for determination of the disputes relating to the terms and conditions of the employees who are or have been in the service of Azad Jammu and Kashmir including disciplinary matters. Under Section 4 of the Azad Jammu and Kashmir Service Tribunal Act "only a 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" can file appeal before the Tribunal. In the present case the petitioners, herein, are admittedly not civil servants. They have only challenged the merit list prepared by the Selection Committee-and order of re-advertisement of the post. These orders cannot be challenged before the Service Tribunal nor Service Tribunal is competent to give any direction. An identical proposition came up for consideration before the Supreme Court of Pakistan in a case titled "Dr. Ahmed Salman Waris, Assistant Professor, Services Hospital, Lahore v. Dr. Naeem Akhtar and 5 others" [PLD 1997 SC 382], wherein, their lordships considered the scope of the provision of Article 212(3) of the Constitution of Pakistan and Section 4 of Punjab Service Tribunals Act. In para 15 of the report, it was observed as under:- "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 alongwith 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 entitled 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 appellant."
10. Again at page 394 of the report, it was opined as under:- "For attracting the aforesaid bar in exercise of jurisdiction under Article 199 of the Constitution by the High Courts, it is to be first shown that petitioner is a civil servant and that the dispute relates to the terms and conditions of his service, unless the aforesaid two conditions co-exist, the provisions relating to the ouster of jurisdiction will not be attracted. Reference in this regard may be made to the recent decision reported in 1991 SCM R. 1041 (LA. Sherwani and others v. The Government of Pakistan through Secretary, Finance Division and others), wherein the question of ouster of jurisdiction of the Courts, under Article 212 of the Constitution of the Islamic Republic of Pakistan came up for consideration, which has been answered as under: `From the above-quoted Article 212 of the Constitution and Section 4 of the Act, it is evident that the jurisdiction of the Courts is excluded only in respect of the cases in which the Service Tribunal under subsection (1) of Section 4 has the jurisdiction. It must, therefore, follow that if the Service Tribunal does not have jurisdiction to adjudicate upon a particular type of grievance, the jurisdiction of the Courts remains intact.'
15. The case of the department is that the petitioner is working as Upper Division Clerk in the Income-tax Department and as such is a civil servant. Therefore, only the Service Tribunal has the exclusive jurisdiction in the matter and this Court cannot exercise jurisdiction under Article 199 of the Constitution to resolve the dispute.
11. The above contention is not warranted. Though the petitioner is a civil servant, but he had applied for appointment to the post of Income Tax Inspector reserved for direct appointment. The said a ointment or non-appointment is not in an manner relatable to the terms and conditions of his service as Upper Division Clerk. Under the Service Rules, if the petitioner is appointed, his previous service, for the purpose of senority or any other purpose, is to be kept out of consideration. In short, his previous service as Upper Division Clerk is to be treated as non-existent. Therefore, insofar as the matter relates to the appointment of the petitioner to the post for which he had applied, he is not to be deemed to be a civil servant. Assuming for the sake of arguments that anyone of the other candidate, who was not working in the department, had filed the petition, would it be open to the department to plead bar of jurisdiction of this Court. The answer is' manifestly in negative. If it be correct for such a person, it would. Equally be correct to hold that the petitioner has the right to maintain the petition before this Court. The Service Tribunal has no jurisdiction in the matter of appointment."
12. (Underlining is mine) .