Ch. Muhammad Ibrahim Zia, J.-- This appeal by leave of the Court has arisen out of the judgment of the Service Tribunal dated 31.08.2015, whereby the appeal filed by respondent No. 1, herein, has been accepted.
2. The summarized facts of the case are that due to retirement of one Mir Alam a post of Naib Qasid fell vacant in Government Boys High School Hoterari, Muzaffarabad. The said post was advertised on 14.01.2013. After conducting the test and interview, vide order dated 28.01.2013 on the recommendations of Selection Committee the appellant, herein, was appointed against the said post. Respondent No. 1, who was serving as Watchman in the said School, challenged the appointment order of the appellant before the Service Tribunal. He claimed that according to the circular dated 01.02.1988, the posts of Naib Qasid should be filled in by promotion amongst the Watchmen but the department filled in the same through initial recruitment. The learned Service Tribunal, after necessary proceedings, set-aside the order dated 28.01.2013 with the direction for appointment of the respondent against the disputed post and thereafter advertisement of the post of Watchman, hence, this appeal by leave of the Court.
3. Mr. Tahir Aziz Khan, Advocate, the learned counsel for the appellant after narration of necessary facts submitted that the impugned judgment of the learned Service Tribunal is against law and facts. The induction in the civil service is regularized by the law known as the Azad Jammu and Kashmir Civil Servants Act, 1976 and the rules made thereunder. According to the enforced rules, the posts of Naib Qasid in the Education Department have to be filled in 100% by initial recruitment. Under these rules the post of Naib Qasid cannot be filled in by promotion or by transfer of a civil servant from any other cadre. The appeal filed by the respondent was not maintainable because his terms and conditions of service have not been adversely affected due to appointment of the appellant. He has got no cause of action or locus standi to challenge the appointment order by filing appeal before the Service Tribunal. So far as the observation of the Service Tribunal regarding circular dated 01.02.1988 is concerned, it is against law. Such like circular cannot be given overriding effect against the statutory provisions of Civil Servants Act and rules made thereunder. The direction of the Service Tribunal for appointment of respondent as Naib Qasid and thereafter advertisement of the post of Watchman, is against law.
The impugned judgment is not maintainable, thus, by accepting this appeal the same be set-aside.
4. Conversely, Ch. Muhammad Manzoor, Advocate, the learned counsel for the respondent No. 1 forcefully defended the impugned judgment and submitted that admittedly the respondent is a civil servant of Education Department. According to the spirit of the circular dated 01.02.1988 the person holding the post of Watchman shall be promoted as Naib Qasid. This circular being issued by the Services and General Administration Department is valid one having force of law. The same has been violated by the departmental authority while appointing the appellant. He seriously objected to the process of advertisement the post of Naib Qasid and argued that neither the post was advertised nor any merit was determined. The alleged advertisement is fake one and the process of selection conducted by the departmental authority is totally fraudulent. The fraud vitiates most solemn proceeding, thus, the whole process of appointment of the appellant is against law. Such illegal and fraudulent process does not create any right or interest, therefore, the appellant has got no locus standi or cause of action.
5. We have considered the arguments of the learned counsel for the parties and gone through the record made available. According to the legal and factual propositions involved in this case, the following vital points are found involved:
(i) the legality of process of appointment of the appellant;
(ii) the status of Circular dated 01.02.1988; and
(iii) the locus standi of the respondent to file appeal before the Service Tribunal.
So far as the process of appointment of the appellant is concerned, it has been claimed on behalf of the respondent that the post has not been advertised, whereas, the appellant and other authority denied this assertion.
6. Leaving aside this aspect, even otherwise the process conducted by the departmental authority for selection of the appellant on the face of it appears to be fake amounting to shake the truth. It appears from the alleged proceeding that only four applicants submitted their applications and except the appellant none of the others appeared for interview. Keeping in view the joblessness situation prevailing in the society it is not possible that such confined number of applicants have applied for appointment and even except the appellant none of the others appeared in the test and interview. However, such proposition cannot be resolved in appeal before the Service Tribunal. According to the peculiar facts of this case for seeking grievance against such proceedings the relief lies somewhere else and if the appointment is found against law that can be challenged through writ of quo-warranto.
7. The examination of the impugned judgment reveals that the Service Tribunal while giving overriding effect to the circular dated 01.02.1988 declared the appointment order of the appellant as illegal and issued the direction for advertisement of the post of Watchman after appointing the respondent as Naib Qasid against the disputed post. Admittedly, the authority has framed rules under the provisions of Civil Servants Act, 1976 which are holding the field. According to these rules the post of Naib Qasid of Education Department has to be filled in 100% by initial recruitment. There is no mode of filling in the same by transfer or promotion, thus, in presence of the statutory rules the referred circular has no legal status. Only the policies consistent with the provisions of Civil Servants Act or rules made thereunder can be given effect and if there is inconsistency then according to the celebrated principle of law, the provisions of Civil Servants Act and rules made thereunder shall prevail and such policy or circular will have to yield. We do not feel any hesitation in holding that according to the enforced rules, the post of Naib Qasid in the Education Department has to be filled in by initial recruitment and no one can claim promotion or appointment through transfer from any other cadre.
8. As on point No. (ii) we have drawn the conclusion that the post of Naib Qasid, according to enforced rules, has to be filled in 100% by initial recruitment, thus, the respondent who is admittedly a civil servant of Education Department and holding the post of Watchman, is not vested with the right to claim appointment against the post of Naib Qasid by transfer or promotion because no such mode is provided by the Civil Servants Act or rules made thereunder. The terms and conditions of a civil servant which have not been specifically mentioned in the Civil Servants Act or rules made thereunder cannot be claimed as a vested right. According to the scheme of law, a civil servant can only be termed aggrieved when any order adversely affecting his legally determined terms and conditions of service is issued. If the claim of civil servant is not based upon any such legally determined or prescribed terms and conditions of service, he has got no legal cause of action or locus standi to file the appeal before the Service Tribunal.
9. So far as the argument of the learned counsel for the respondent that the circular being issued by Services and General Administration Department has force of law, is concerned, we have no cavil with this but mere issuance of circular from any department does not make it valid or determine its status unless issuing authority derives the powers from any Statute. In presence of the statutory provisions of Civil Servants Act and the rules made thereunder such like circular cannot be given preference over statutory provisions. In this state of affairs, the conclusion drawn by the learned Service Tribunal does not appear to be consistent with the spirit of law, hence, cannot sustain.
10. Before parting with the judgment we deem it necessary to observe in the public interest the mal-practices noticed by the Court. Although, on the legal ground the appeal filed by the respondent has been declared as not competent but the whole proceedings conducted by respondents No. 2 and 3 appear to be fishy and tampered one. Neither the record of the selection committee nor the original file of appointment of the appellant is found available. The concerned were summoned, whereupon the District Education Officer was also directed to hold an inquiry who submitted the inquiry report. It appears that he has also failed to apply his mind and just for filling in the blanks the so called inquiry report has been submitted by making scapegoat one Sain Muhammad, Junior Clerk of the time, whereas, according to record furnished by the District Education Officer it is clear that the act of declaring Sain Muhammad as responsible is against the facts and law. The charge report dated 15.01.2015 has been made part of the inquiry report wherein the said disputed file is not included. This charge report is countersigned by Incharge Headmaster, Pervaiz Ahmed, who is also an important character of the whole story.
If the inquiry report is correct then why on 15.01.2015 the Incharge Headmaster has not taken notice that the disputed file is not included in the charge report. He countersigned the charge report which means that he confirmed its correctness and contents mentioned in it, thus, it is clear that the said disputed file was neither in the custody of Sain Muhammad nor handed over to any other clerk. It clearly speaks that the authority and the members of the selection committee are jointly responsible for such misdeed and mal-practices. Therefore, we do not agree with the report of the District Education Officer and declare that it is just eyewash to shift the responsibility on one Sain Muhammad who according to the produced record cannot be declared responsible for the alleged misconduct rather the authority and the members of selection committee are responsible for this mal-practice. The District Education Officer's proposed action against Sain Muhammad, Clerk, is unjustified, hence, quashed.
11. It is also very strange that all the concerned stated that despite advertisement and submission of four applications only one candidate appeared. It is impossible. Everybody knows that due to unemployment the people seeking job are running form pillar to post so how it is possible that only one candidate appeared in the test and interview. The whole story clearly speaks that the proceedings have not been conducted in a transparent manner rather these are totally fishy and doubtful. However, all these aspects can only be entertained if any person aggrieved in legal sense approaches the Court. We deem it necessary in the public interest to direct the Secretary of the Department to take necessary steps for transparency of proceedings conducted while making appointments and strict compliance of law.
In view of the above the appeal of the appellant is accepted and the impugned judgment of the Service Tribunal dated 31.08.2015 is set aside. No order as to costs.