RAJA SAEED AKRAM KHAN, J. -- The titled appeals by leave of the Court have been directed against the judgments of the Service Tribunal dated 15.07.2014 and 08.05.2015. As common factual and legal questions are involved in both the appeals; therefore, these are being disposed of through this single judgment.
2. The facts necessary for disposal of these appeals are that respondent No, 1 herein, in appeal No, 12 and appellant, herein, in appeal No, 261, Khalid Maqbool, was appointed as Junior Teacher vide order dated 12.09.2013, in Boys High School, Akramabad. Subsequently, the department vide another order dated 02.10.2013, while promoting appellant, herein, in appeal No, 12, Muhammad Altaf Khan, appointed him against the same post. The respondent, herein, Khalid Maqbool, challenged the appointment order of the appellant, Muhammad Altaf Khan, before the Service Tribunal. During the pendency of appeal, the departmental authority vide order dated 25.05.2014, adjusted the respondent, Khalid Maqbool, in Boys Middle School, Trarkhel. The adjustment order of the respondent was also challenged before the Service Tribunal by one Muhammad Shahzad, respondent, herein in appeal No, 261. The learned Service Tribunal accepted both the appeals vide impugned judgments dated 15.07.2014 and 08.05.2015. Hence, these appeals by leave of the Court.
3.Sardar Muhammad Habib Zia, Advocate, thelearned counsel for the appellants, Muhammad Altaf Khan, argued that the judgment passed by the learned Service Tribunal is against law and the facts of the case which is not sustainable in the eye of law. He contended that only two posts were advertised against which the appointments were made according to the merit list, whereas, the name of respondent No, 1, Khalid Maqbool was placed at Serial No, 6 of the merit list who was not eligible for the appointment. He contended that the apex Court in a number of pronouncements has held that no appointment can be made in excess to the advertised posts. Thus, the appointment order of the respondent, Khlaid Maqbool was illegal as the same has been issued in uter disregard of the pronouncements of this Court. He submitted that basic appointment order of the appellant was illegal, but the learned Service Tribunal failed to understand the real controversy involved in the mater while upholding the same. He has relied upon the cases reported as Tanveer Ahmed v. Roshan Din and 2 others [2000 SCR- 120] and Azad Govt. and 2 others v. Muhammad Qadir Javid and another [2014 SCR 479].
4.On the other hand, Sardar Pervaiz Akhtar,Advocate, the learned counsel for the respondent, Khalid Maqbool, strongly opposed the arguments advanced, by the learned counsel for the appellant. He submitted that the impugned judgment of the Service Tribunal dated 15.07.2014, is quite in accordance with law which is not open for interference by this Court. He contended that the appellant does not affect from the appointment of the respondent. He added that the appointment of the respondent was duly made on the recommendations of the selection committee. He further added that during the pendency of appeal filed by the respondent, herein, before the Service Tribunal another order was issued through which the respondent was adjusted, however, the adjustment order of the respondent was challenged before the Service Tribunal and the Service Tribunal wrongly set aside the same. The said order of the Service Tribunal is also impugned before this Court through separate appeal. He has relied upon the case-law reported as Raza v. Abdul Khadim and others [2004 SCR 298].
5. We have heard the learned counsel for the parities and gone through the record alongwith the impugned judgments. It is an admitted position that vide advertisement dated 02.02.2013, the education department advertised only two posts of junior teacher against the quota of constituency No, 2, of the District Poonch. After conducting the test and interview, the candidates who got the merit position were appointed. The respondent, Khalid Maqbool, was at serial No, 6, of the merit list whose appointment order has also been issued on 12.09.2013, despite the fact, that the post against which he was appointed was neither advertised nor was available at the time of advertisement. During the course of arguments, a query was made to the learned counsel for the respondent whether the appointment order of the respondent was issued against a post which was not advertised. He submitted that the basic appointment order of the appellant has not been challenged, therefore, the same has attained finality. We are afraid, when an order was made in violation of the law, how the same can be protected mere on the ground that no one has challenged the same. Any appointment which has been made without following the prescribed procedure of law is illegal and the same cannot be given the legal cover. It is also settled law that after the appointment of successful candidates against the post which were advertised, no one can be appointed against any other post which becomes available, subsequently. This Court in a case reported as Azad Govt. and 2 others v. Muhammad Qadir Javid and another [2014 SCR 479], while dealing with the proposition has observed that:--- Thus, it can safely be concluded that the candidate placed by the Public Service Commission in the waiting list in the result of test and interview conducted in response to advertisement issued by the Public Service Commission on the requisition of the department, can only be appointed against the post if the candidate who was appointed on the recommendations of the Commission failed to join the service or he is declared medically unfit and department requested the Public Service Commission to recommend the candidate next in .the merit list from the waiting list prepared by the Public Service Commission and this merit list shall remain valid only for a period of 180 days. No candidate who has qualified the test and interview and is placed in the waiting list can be appointed against the post which becomes available after the test and interview have been conducted by the Public Service Commission in response to previously advertised vacancies."
Similarly, in another case reported as Naseem Abbas Shah & another v. imran Shaffi and 6 others [2014 SCR 1022], this Court has observed that:-- "The successful candidates after conducting test and interview by the Public Service Commission can be appointed only against the posts which were advertised and no one can be appointed against any other post (which become available thereafter."
After going through the record and the case-law referred to hereinabove, we are of the view that the appointment of the respondent has been made in sheer violation of the dictum laid down by this Court which cannot be allowed to remain in field.
6. In the light of above discussion, while accepting appeal No, 12 of 2015, filed by the appellant, Muhammad Altaf Khan, the impugned judgment of the Service Tribunal dated 15.07.2014, alongwith the basic appointment order of the respondent, Khalid Maqbool, is hereby set aside. No order as to costs.
So far as, appeal No, 261 of 2015, filed by the appellant, Khalid Maqbool, is concerned it may be sated that the Service Tribunal vide judgment dated 08.05.2015, cancelled the adjustment order of the appellant dated 27.05.2014 and the appellant challenged the said judgment of the Service Tribunal before this Court. Now when the basic appointment order of the appellant has been set aside while declaring illegal, then the issue regarding the adjustment of the appellant, Khalid Maqbool, is no more alive. Hence, the appeal of the appellant, Khalid Maqbool, is hereby consigned to record being infructuous. There is no order as to costs.