1. BASHARAT AHMAD SHAIKH, J.--This is a petition filed to seek review of the judgment of this Court pronounced on 17th `of February, 1996 in a case titled "Raja Muhammad Ashraf Kayani v. Azad Government and others". The petitioner had challenged a seniority list prepared by the High Court and approved by the Government by filing an appeal before the Service Tribunal. The petitioner impleaded Azad Government of the State of Jammu and Kashmir as one of the respondents but did not implead the Judges of the High Court as respondents, although Registrar of the High Court was placed in the line of respondents. This Court formed the view that in light of the Service Tribunals Act and Service Tribunal (Procedure) Rules the Judges of the High Court were necessary parties and in their absence no effecting order could be passed by the Service Tribunal. It was found to be a fatal defect and appeal was dismissed on that score alone without going into the merits of the case.
2. Raja Muhammad Hanif Khan, the learned counsel for the petitioner, firstly contended that the objection about absence of the Judges of the High Court from the line of respondents was not raised before the Service Tribunal nor was it included as an objection in the concise statement filed by the respondents in the Supreme Court. He pleaded that this point should not have been brought under consideration by this Court.
3. In the judgment under review it was observed as follows:-- ---.....It is true that the point has not been raised in the memo of petition for leave to appeal nor in the concise statement but in many reported cases the absence of a necessary party was noted by the Court itself and without the point being raised the writ petition or appeal was ordered to be dismissed on that ground. We will be referring to the some cases on this point subsequently."
4. In continuation of the observation reproduced above some cases were referred to highlight the point that it has been the consistent practice of this Court to dismiss a suit, petition or appeal on the sole ground that a necessary party was not duly impleaded even if this point had not been raised at an earlier stage and even if had not been raised at all. We referred to the following cases in which this objection was not raised and at all by any party but was taken notice of by this Court suo motu:
(1) Muhammad Resham Khan v. Chairman, Inspection Team and others (1990 CLC 1355)
(2) Mirza Lai Hussain v. Custodian of Evacuee Property (1992 MLD 1280).
5. Following unreported cases were also brought under consideration:
(1) Rahat Saeed Bukhari v. Sadia Shah and others (decided on 17-5-1995).
(2) Syed Muhammad Akram Shah v. Chairman, Allotment Committee (decided on 24-7-1995), and
(3) Professor Sarfraz Khan v. Ch airman Allotment Committee. (decided on 27-4-1995).
6. Therefore, the point raised by the learned counsel has no force.
7. The second point raised by Raja Muhammad Hanif Khan is that the cases which have relied upon in the judgment under review in support of the view that the Judges of the High Court can be impleaded as respondents are cases of writ jurisdiction while the case in hand was an appeal before the Service Tribunal where the principles about impleading of respondents is different. This argument is factually incorrect because none of the cases referred to in the judgment under review was from a writ petition. All these were cases in which the Judges of the High Court had taken administrative or executive decisions and appeals were filed before the Supreme Court of Pakistan by impleading the Honorable Judges as respondents.
8. The learned counsel then contended that under Order 1, rule 9 of the Code of Civil procedure no suit could be defeated by reasons of non joinder or misjoinder. He submitted that the said rule was applicable to the Service Tribunal. It was contended that the controversy should have been decided so far as regard rights and interests of the parties actually before the Court. Without going into the question whether the said rule is applicable to the Service Tribunal or not, our view is that this rule has no application where a necessary party is not before the Court and it is not possible to pass an effective decree or order in absence of a party. This view has been expressed by this Court in Abdul Hamid v. Muhammad Zameer Khan (1990 MLD 1617). In that judgment a large number of cases have been discussed. On this point the same view has been held in Muhammad Suleman v.
9. Abdul Rashid (PLD 1987 Lah. 387), Mst. SalIria Abbas v. Ahmed Suleman (1981 CLC 462) and Miss Naghmana Rooht v. Messrs United Bank Ltd. (1988 CLC 2014). It may be observed that we have held in the judgment under review that Judges of the High Court fell in the category of necessary party.
10. Another point raised by Raja Muhammad Hanif Khan was that according to the Azad Jammu and Kashmir Civil Servants (Appeal) Rules 1981 "competent Authority" is the authority which is competent to appoint a civil servant. He submitted that in the present case the competent Authority of the contesting civil servants was the Government which had been duly impleaded in the appeal filed before the Service Tribunal. This point is devoid of any force because a definition given in one set of rules cannot be pressed into service in another set of rules. Under section 4 of the Service Tribunals Act appeal lies against the order of a "departmental authority" and not against the orders passed by the Appointing Authority. If argument advanced by the learned counsel is accepted all cases in which an adverse order is passed by a departmental authority which is not the appointing authority of the aggrieved civil servant no appeal would be maintainable before the Service Tribunal. Therefore, in our view, the words "competent Authority" in rule 8 of the, Azad Jammu and Kashmir Service Tribunal (Procedure) Rules refer to the authority which has passed an order against which an appeal is filed before the Service Tribunal.
11. The last argument in support of the review petition is that the Judges of the High Court could have been added as a party by this Court. In this respect reliance is placed on Central Government of Pakistan v. Suleman Khan (PLD 1992 SC 590). The argument runs counter to the well-accepted legal position that when a new party is added to a suit, appeal or petition it is deemed to have been filed on the date a new party is added. In such a situation the appeal filed in the Service Tribunal would have been hopelessly the-barred. Suleman Khan's case relied upon by the learned counsel deals with the transposition of parties and does not deal with addition of a new party.
12. We have, therefore, no hesitation in rejecting the review application A.A./131/SC(AJ&K)Review rejected.