Ghulam Mustafa Mughal, J-- This appeal by leave of the Court has been directed against the judgment of the High Court dated 22.12.2016, whereby the writ petition filed by appellant, herein, has been dismissed.
2. The precise facts forming the background of the captioned appeal are that the father of the appellant, herein, was serving as driver in the department of Ushar and Zakat. He retired from servi ce on 2.11.2015. The appellant, herein, applied for appointment against the post fell vacant due to retirement of his father . He was temporarily appointed but, later on, respondent No.6, herein, was appointed and adjusted against the post on which the appellant, herein, was appointed. The appellant, herein, challenged the legality of the appointment of respondent No.6, herein, through a writ petition before the Azad Jammu & Kashmir High Court. He also sought a direction to the respondents for his appointment. After necessary proceedings, the learned High Court has dismissed the writ petition through the impugned judgment.
3. Ch. Muhammad Manzoor , Advocate, appearing for the appellant, vehemently argued that the writ petition filed by the appellant, herein, was dismissed erroneously by misconstruing rule 32 of the Azad Jammu & Kashmir High Court Procedure Rules, 1984. The learn ed Advocate further argued that the dismissal of the writ petition on the ground that the same was barred in view of section 47 of the Azad Jammu & Kashmir Interim Constitution Act, 1974 because the grievance voiced throu gh writ petition relates to the terms and conditions of the service of the petitioner was also not legal. The learned Advocate argued that an application was made for dispensation of rule 32 of the Azad Jammu & Kashmir High Court Procedure Rules, as the attested copies of the impugned documents were not supplied to the petitioner-appe llant and the same is available at page 31 of the paper-book but the learned High Court has not considered this application. The learned Advocate argued that the dismissal of the writ petition for violation of rule 32 of the Azad Jammu & Kashmir High Court Procedure Rules, 1984 was against the latest view taken by this Court in Ahmed Nawaz Tanoli' s case reported as 2016 SCR 960. He argued that as the documents impugned before the High Court were admitted by the other side, hence, the writ petition should have not been dismissed for this technical reason. The learned Advocate argued that a direction was sought for determination of quota as visualized by the departmental rules and the appointment thereafter , but this aspect of the case has been ignored by the learned High Court while handing down the impugned judgment.
4. M/s Raza Ali Khan, Advocate General and Asim Masood Gillani, Advocate, appearing for the respondents, controverted the arguments and supported the impugned judgment. They contended that the private respondent being an old employee of the department has been adjusted by the competent authority against the vacant post, therefore, the proper course for the appellant, herein, was to approach the Service Tribunal, thus, the learned High Court has committed no illegality while dismissing the writ petition. They further argued that the dismissal of the writ petition on the ground of violation of rule 32 of the Azad Jammu & Kashmir High Court Procedure Rules, 1984 was quite legal because no justification for dispensation had been made out.
5. We have heard the learned Advocate representing the parties and gone through the record made available. A perusal of the writ petition reveals that the appellant, herein, has sought a direction to the respondents for his appointment as driver according to Government notification dated 24.5.2003 against 20% quota reserved for the departmental employees. The learned High Court has dismissed the writ petition on the ground that the mater pertains to the terms and conditions of the service of the appellant, herein, hence, he should have approached the Service Tribunal. In our estimation, the view taken by the learned High Court for dismissal of the writ petition is not proper . The appellant, herein, is not in service as he was appointed temporarily and relieved from service due to appointment of the private respondent, herein. A person who is not in service, cannot approach the Service Tribunal because the right of appeal before the Service Tribunal is available only to the civil servant as has been opined in the case reported as Dr. Ahmed Salman Waris, Assistant Professor , Services Hospital, Lahore vs. Dr. Naeem Akhtar and 5 others (PLD 1997 Supreme Court 382), wherein , at page 389 after discussing the scope of right of appeal before the Service Tribunal, it has been opined as under:- "11. Article 212(1)(a) of the Constitution provides that the Administrative Courts or the Tribunals established under the Act of appropriate Legislature is to exercise exclusive jurisdiction in respect of matters relating to the terms and conditions of persons who are or have been in the service of Pakistan including disciplinary matters. 'Service of Pakistan' as defined in Article 260(1) if the Constitution means any service, post or office in connection with the affairs of Federation or of a Province and includes an All Pakistan Service, service in the Armed Forces and any other service declared to be service of Pakistan by or under the Act of Parliam ent or of a Provincial Assembly except those services mentioned expressly in this Article not falling within the purview of Service of the Act) only, Punjab Service Tribunal was established to exercise jurisdiction regarding matters relating to the terms and conditions of service in respect of services of the Province of Punjab. Under section 4 of the Act appeal lies at the instance of an aggrieved civil servant before the Tribunal against the final order , whether original or appellate, passed by a departmental authority in respect of any of the terms and conditions of his service including disciplinary matters, within 30 days of the communication of such order to him. However , no appeal is competent before the Tribunal against the order of a departmental authority determining fitnes s or otherwise of a person to be appointed or to hold a particular post or against the order imposing penalty except where the punishment awarded is dismissal, removal, reduction in rank or compulsory retirement from service. The definition of civil servant given in Punjab Civil Servants Act (VIII of 1974) is the same as given in section 2(b) of the Act. A member of a civil service of the Province or who holds or has held a civil post in connection with the affairs of the Province. However , a person who is or has been on deputation to the Province from the Federation, or from other Province or authority , a person employed on contract or on work-charge basis or paid from contingencies and a person who is or has been a worker or workman as defined in the Factories Act, 1934 or Workmen' s compensation Act, 1923, are expressly excluded from the purview of the definition of civil servant. Therefore, in order to make a matter exclusively cognizable by a Tribunal under the Act, and to create an ouster of jurisdiction of all other Courts and Tribunals under Article 212 of the Constitution, it must be shown that the matter is agitated by a civil servant as defined under the Act, it has arisen from a final order of a departmental authority whether original or appellate, it concerns the terms and conditions of the aggrieved civil servant and that it is not covered by the exceptions mentioned in proviso b(i) and (ii) of section 4 of the Act. If any of the conditions mentioned above are non-existent in a case then, the bar contained in Article 212 of the Constitution will not be operative." Again at page 398 of the report (supra), in para 15, it was opined as under:- "15. 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 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 alongwtih 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 meani ng 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/recommendations 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 actio n of the Commission did not fall within the category of the final order of a departmental authority , whether original or appellate."
The same view was taken by this Court in the case reported as Munir Qadir vs. Chairman, PSC and 4 others (2003 PLC (C.S) 743 ). Para 4 and 5 of the judgment can usefully be reproduced as under:- "4. Appeal before the Service Tribal can be reiled only against a final order passed by a Departmental Authority but the Service Commission is not a Departmental Authority as is evident from the definition of that phrase given in the explanation attached to section 4 of the Service Tribunal Act. It is as follows:- 'Explanation.--In this section 'departmen tal authority , means any authority other than a Tribunal which makes an order in respect of any of the terms and conditions of civil servants.'
5. The action of the Tribunal which gave cause of action to the appellant was taken when the appellant was only a private citizen and was not a civil servant. He became a civil servant after 3rd of January , 1998 when his appointment was ordered. Since he was not a civil servant it cannot be said that the modification in the merit list carried out by the Public Service Commission was in respect of terms and conditions of a civil servant. It follows that while modifying the merit list and the Public Service Commission did not deal with terms and conditions of a civil servant was, therefore, not a departmental authority . Even otherwise the term "departmental authority" cannot include the Public Service Commission which deals with private citizens who aspire to become civil servants and has no nexus with civil servants. Therefore, we are quite clear that if the appell ant had filed appeal before the Service Tribunal it would have been dismissed at the threshold because the Tribunal has no jurisdiction to entertain appeals against actions of the Public Service Commission. According to section 47 of the Azad Jammu & Kashmir Interim Constitution Act the jurisdiction of the High Court is only ousted in matters to which the jurisdiction of a Service Tribunal extends. Since the jurisdiction of the Service Tribunal does not extend to an order/action of the Public Service Commission, there is no question of ouster of High Court jurisdiction."
We are of the view that the appointment order of respondent No.6 could not be challenged before the Service Tribunal and the Tribunal is not vested with any authority to issue direction to the concerned authority for calculation of quota as well as making appointment. Reference in this behalf can be made to the case reported as Abdul Khaliq, Primary Teacher , Primary School, Rajkot, Tehsil and District Muzaffarabad vs. Zaheer Ahmed and 4 others (2000 PLC (C.S.) 706 ).
6. So far as the contention of the learned Advocate for the appellant that the writ petition could not be dismissed for violation of Rule 32 of the Azad Jammu & Kashmir High Court Procedure Rules, 1984 is concerned, that is not without substance. In Ahmed Nawaz Tanoli' s case (supra), this Court has taken the following view with regard to violation of rule 32 of the Azad Jammu & Kashmir High Court Procedure Rules:- {{URDU TEXT}}
7. As the writ petition cannot be dismissed on the afore stated grounds, therefore, while accepting appeal we are constrained to remand the case to the learned High Court for its disposal on merits.
No order as to costs.