MOHAMMAD AZAM KHAN, C.J.--- The above titled petition for leave to appeal has been filed from the order of the Service Tribunal dated 07.02.2014 passed in Appeal No,161 of 2010, whereby the appeal filed by respondent No,1, herein, has been accepted.
2. Necessary facts for disposal of the petition for leave to appeal are that respondent No,1, Mushtaq Ahmed was serving as Naib Qasid, in the Shariat Court of Azad Jammu and Kashmir. His services were terminated by the competent authority on 14th January, 2010. He filed an appeal in the Azad Jammu and Kashmir Subordinate Judiciary Service Tribunal. The appeal was accepted on 7th February, 2014, whereby he was restored in service. After the termination of the respondent, the post was advertised on 20th January, 2010 and the petitioner, herein, was appointed against the said post. Feeling aggrieved the petitioner has challenged the order of the Service Tribunal dated 07.02.2014 through the instant petition for leave to appeal.
2. Ch. Muhammad Manzoor, Advocate, counsel for the petitioner, submitted that the petitioner was appointed on 20.01.2010 by the concerned Selection Committee after conducing test and interview.
The appointment of the petitioner was made in accordance with law. He further submitted that the respondent was proceeded against and was compulsorily retired from service. The respondent has not challenged the advertisement through which the petitioner was appointed and has also not challenged the proceedings of the Selection Committee, therefore, the appeal before the Subordinate Judiciary Service Tribunal was not maintainable. The learned counsel further submitted that the restoration of respondent No,1 in service on the post occupied by the petitioner is against law. The petitioner was duly appointed after conducting test and interview. He requested for grant of leave.
3. While controverting the arguments, Raja Sajjad Ahmed Khan, Advocate, counsel for the other side, submitted that the petition for leave to appeal is time barred. The judgment was delivered on 7th February, 2014 and the petition for leave to appeal has been filed on 5th May, 2014, therefore, the same is 60 days beyond the period of limitation. On merit, the learned counsel submitted that the petitioner is not an aggrieved person. He has no right to file PLA/appeal against the restoration order of the respondent. The petitioner was appointed against the post which fell vacant due to compulsory retirement of respondent. On appeal the respondent has been restored in service, therefore, there is no vacant post. The learned counsel submitted that the appointment can be made only against a vacant post. He submitted that the respondent was terminated from service on 14th January, 2010 and appointment of the petitioner was made in a hasty manner. The post was advertised on 20th January, 2010 only after a period of 6 days without awaiting the filing of the appeal by the respondent. The learned counsel further argued that the Law Department has not accorded approval for filing the petition for leave to appeal against the judgment of the Subordinate Judiciary Service Tribunal.
4. I have heard the learned counsel for the parties, and perused the record. It appears from the record that respondent No,1 was serving as Naib Qasid in the Azad Jammu and Kashmir Shariat Court, Muzaffarabad. He was compulsorily retired from service by the authority on 14th January, 2010. He filed an appeal in the Subordinate Judiciary Service Tribunal. His appeal has been accepted through impugned judgment dated 7th February, 2014, whereby he has been restored in service. The petitioner was appointed against the post which fell vacant due to compulsory retirement of respondent No,1. After his restoration in service the seat is not vacant. The petitioner cannot claim to remain posted against the said post because it is no more a vacant post. The original person who was appointed against the said post has been restored in service. The petitioner has no right to challenge the restoration order of the respondent. No legal question is involved in the instant petition for leave to appeal. Leave cannot be granted in every case only to create false hope in the mind of a litigant.
The result of the above discussion is that finding no force in this petition for leave to appeal, it is hereby dismissed.