' MUHAMMAD YUNUS SURAKHVI, J.---This appeal, by way of leave, has been directed against an order passed by the Service Tribunal of Azad Jammu and Kashmir on 15-5-1997, whereby the appeal filed by the appellant herein against an order issued by District Education Officer on 25th of August, 1996 was dismissed.
2. The precise facts are that certain posts in the Education Department were duly advertised to be filled in. Consequently the appellant along with others applied for the post of Junior Clerk, B-5. The appellant appeared before the Selection Committee which took test and interview from the appellant and others and thereafter a merit list was prepared by the said Committee in which the appellant was placed at the top of the merit list. In pursuance of the merit list the appellant was appointed as Junior Clerk in Grade B-5 on the recommendations of the Selection Committee by District Education Officer (Female Elementary) Muzaffarabed vide dated 18-2-1996. The order of appointment of appellant was challenged by Waheed Akhtar, respondent No, 2, by preferring an appeal before the District Education Officer (Secondary) Muzaffarabad. The aforesaid appeal was accepted by the said respondent vide order dated 25-8-1996, without hearing the appellant. The appellant filed appeal before the Service Tribunal against the order issued by District Education Officer on 25th August 1996, whereby the order of appointment of the appellant as Junior Clerk was set aside. The order was passed by District Education Officer and it was stated therein that it was being passed "as directed". The appellant filed appeal before the Service Tribunal and impleaded District Education Officer as one of the respondents. The appeal has been dismissed by the Service Tribunal on the sole ground that Divisional Director of Schools, who was a necessary party, was not arrayed as a respondent in the appeal before the Service Tribunal. Hence this appeal.
3. Mr. M. Tabassum Aftab Alvi, the learned counsel for the appellant, has submitted that there is nothing on record to show that the order, impugned before the Service Tribunal, was in fact passed by the Divisional Director of Schools. His contention precisely is that only necessary party from amongst the Government functionaries was the District Education Officer who was duly impleaded as respondent. The learned counsel has also impressed upon that his case all along has been that the order of appointment of his client was set aside by the District Education Officer and the words "as directed" by no stretch of imagination lead to the conclusion that the same was issued under the direction of Divisional Director of Schools. The learned counsel has submitted that the above said averment has been clearly made in the memorandum of appeal duly supported by his affidavit but the same has not been controverted by filing a counter affidavit on behalf of respondents. Thus according to the learned counsel the assertion made in the memorandum of appeal before the Service Tribunal in absence of any counter affidavit from the opposite side stands proved. The learned counsel also pressed into service the submission that the appellant was adversely affected by the order of District Education Officer which is a part to file and his only remedy was to assail the order adversely affecting his interests. The learned counsel strenuously contended that the Service Tribunal miserably failed' to attend to the moot point and miss- interpreted the order of District Education Officer as that of Divisional Director of Schools. According to the learned counsel as the appeal filed by the respondent before District Education Officer was not competent, therefore, the same was liable to be dismissed but both the District Education Officer and the learned Service Tribunal committed an error rendering their judgments into nullity.
It was also pressed into service that the appellant appeared in test and interview and topped the merit list duly prepared by the Selection Committee and his appointment was made by District Education Officer on the recommendation of Selection Committee. On the other hand respondent No, 2 neither appeared in test and interview nor applied for the said post and his name nowhere figures in the merit list as such the annulment of the appointment order of the appellant was bad in law.
4. In reply Mr. Farooq Hussain Kashmiri, the learned counsel for the respondents, submitted with vehemence that against the order of appointment of appellant respondent No, 2 filed an appeal before the Divisional Director of Schools and it was under his direction that the order of appointment of appellant was annulled by the District Education Officer. Thus according to the learned counsel the words "as directed" shall be construed to be that of the Divisional Director of Schools. The learned counsel has further argued that Divisional Director being necessary party was not arrayed as respondent, therefore the appeal was rightly dismissed by the Service Tribunal as being improperly constituted. In support of his contention the learned counsel relied upon a case of Mr. M. Ashraf Kiani v. Azad Government and others (PLD 1997 SC(AJK) 376). Controverting the contention of the learned counsel for the appellant that respondent never appeared in the test and interview nor his name figures in the merit list it was pointed out by the learned counsel that they have specifically alleged that the said merit list is fake, fictitious and has been maneuvered in connivance with the relevant authorities. According to the learned counsel for the respondents the impugned order is open to no exception and as such the appeal is liable to be dismissed.
5. We have given our due consideration to the arguments addressed at Bar and perused the relevant record with care. There is no dispute that the appellant was duly appointed as Junior Clerk in grade B-5 by the District Education Officer (Female Elementary) Muzaffarabad on 18-2-1996 on the recommendations of Selection Committee. The dispute starts thereafter. As said earlier both the parties have made divergent assertions with regard to the filing of appeal. The appellant clearly averred that respondent No, 2 preferred an appeal against the order of appointment of appellant before the District Education Officer whereas respondent No, 2 alleged that the said appeal was filed before the Divisional Director of Schools. In support of his averment the appellant has filed his duly sworn affidavit verifying the abovementioned fact whereas respondent No, 2 has filed no such affidavit countering the claim of the appellant. This question being a question of fact could have been resolved by producing evidence before the learned Service Tribunal but both the parties did not choose so. Thus we are left with no option except to resolve the issue on the basis of material placed by the parties on the record.
6. The order dated 25-8-1996 on the basis of which appointment order of appellant was annulled clearly speaks to have been written by the District Education Officer and not by the Divisional Director of Schools as claimed by the respondent's counsel. As far the words "as directed" do not positively suggest the direction of Divisional Director of Schools since the same can be direction of anybody but the fact remains that no such order setting aside the appointment of appellant was placed on record passed by Divisional Director. There is yet another aspect of the case that had there been any order of Divisional Director of Schools setting aside the appointment order of appellant, then that must have been placed on record by the respondents. Thus in these circumstances we cannot presume in vacuum that the order passed by the District Education Officer was passed as directed by Divisional Director of Schools.
7. Another significant aspect of the cases which agitates our mind is that in the merit list the name of respondent figures nowhere. It is the case of the appellant that respondent never appeared in the test and interview before the Selection Committee nor did he apply for the post and his this assertion is positively made in para 8(c) of the memorandum of appeal before the Service Tribunal but when the learned counsel for respondents was confronted with this averment during the course of arguments he submitted that the merit list was fake, fictitious and was manoeuvred by the appellant with the relevant authorities. In the written statement in reply to para 8(c) no such averment is made justifying the explanation put forth. It is stated in the said para that necessary explanation will be submitted at the time of arguments in the light of relevant record. In our view such an assertion in the written statement totally negates the argument advanced by the learned counsel for the respondents.
8. The order of District Education Officer whereby the order of appointment of appellant was annulled as suggested by the learned counsel for the appellant carries absolutely no reasons. It also suggests that at the time of passing of order the appellant was not even provided the right of hearing which is rule of universal application as once the order is acted upon, the rule of locus penitential demands that the same should not be recalled without hearing the party whose interest is affected adversely.
9. It may also be observed that during the course of arguments, before the learned Service Tribunal, the learned counsel for the respondents placed an attested copy of memorandum of appeal filed before the Divisional Director in order to substantiate his claim that in fact the appeal was filed before the Divisional Director who was not impleaded as one of the respondents and the learned Service Tribunal readily accepted the assertion of the respondent. In our view it was not a proper stage for accepting the said document, needless to mention that no judgment was recorded by the Divisional Director.
10. Mr. M. Tabassum Aftab Alvi, the learned counsel for the appellant, similarly has placed reliance on a document filed with his concise statement thereby showing that the words "as directed" were mentioned in the order on the directions of Mian Ghulam Rasool, Member Legislative Assembly, who directed the District Education Officer to appoint respondent No, 2 as Junior Clerk. We may observe that even this document cannot be taken into consideration as the same was not placed before the Service Tribunal at its appropriate stage. As already observed the words "as directed" may be the direction of anybody but the fact remains that the impugned order was passed by the District Education Officer who was not competent to hear the appeal.
11. Having dealt with various objections and counter arguments in the preceding part of this judgment, it may be observed that the Service Tribunal did not record its finding on the merits of the case of the parties, because it dismissed the appeal on a technical ground. In such a situation the case should have been remanded to the Service Tribunal for applying its mind on the merits of the case but where in the facts and circumstances of the case a finding can easily be given on the merits of the case our practice has always been to decide the case ourselves. Our aforesaid view is supported by a reported case titled. Raja Feroze Khan v. Asghar Khan and others 1992 SCR 363 and an unreported case titled Ghulam Din and others v. Muhammad Yaqub Khan and others, Civil Appeal No, 1 of 1989, decided on 13-4-1991. Thus we have reached the conclusion that instead of remanding the case we should decide it ourselves.
12. As already observed, the respondent neither appeared in the test/interview nor his name figures in the merit list, therefore, he was not eligible to be appointed in place of appellant. Moreover, the District Education Officer was not competent to sit in appeal against his own orders. The appeal against the order passed by the District Education Officer was competent only before the Divisional Director which is not so in the instant case.
13. The upshot of the above discussion is that by accepting the appeal, we set aside the impugned order passed by the Service Tribunal and restore the order of appointment of appellant with no order as to costs.