' BASHARAT AHMAD SHAIKH, J.---This appeal has been directed against the judgment of the Service Tribunal, dated 24th July, 1999 whereby the appeal filed by Muhammad Sabir, respondent No,1, was accepted and his appointment as Assistant Warden Fisheries Authmaqam was restored. The appellant was not a party to the appeal.
2. Case of the appellant is that he was recruited on the basis of open merit as Supervisor Fisheries B.6 on 4th March, 1981. Rashid Shah, Assistant Warden Fisheries, was promoted as Assistant Director on 13th November, 1994 and the post of Assistant Warden Fisheries occupied by him fell vacant. It is claimed that the appellant, being senior most among the category of Supervisors, was entitled to be promoted as Assistant Warden Fisheries but Muhammad Sabir, respondent No,1, who had been earlier appointed as Laboratory Assistant in B-11 on 22nd September, 1994 purely on temporary basis was appointed as Assistant Warden Fisheries in B-9 vide order, dated 29th November, 1994.
The Appellant filed appeal against the aforesaid order passed in favour of the respondent before Secretary Fisheries which was pending when on 5th April, 1995, Director-General Fisheries, acting under order of the Minister Fisheries, posted/appointed the respondent as Laboratory Assistant Pheasants Breeding Centre Pattika from where Muhammad Farooq was posted/appointed as Assistant Warden Fisheries. Another order was issued on 10th October, 1995 by the Director-General appointed Muhammad Farooq, already mentioned, as Assistant Warden Fisheries Authmaqam.
The appointment was made subject to approval of the Departmental Selection Committee. The appellant filed fresh appeal before Secretary Fisheries against the order of appointment of Muhammad Farooq which was under consideration when Muhammad Farooq was martyred as a result of Indian Shelling and the post of Assistant Warden Fisheries again became vacant.
Consequently the appellant was promoted against the said post during pendency of the respondent's appeal before the Service Tribunal on 22nd January, 1997 subject to the approval by the Selection Committee. He was subsequently approved by the Selection Committee on 14th April, 1997.
3. Respondent Muhammad Sabir had filed an appeal against his transfer from the post of Assistant Warden Fisheries to the post of Laboratory Assistant vide order, dated 5th April, 1995 which was pending. However, subsequently on some charges of misconduct the respondent was removed from service and thus, he did not pursue his appeal against the order of promotion of Muhammad Farooq. On 6th March, 1996 he filed appeal before the Service Tribunal to challenge the order of 10th October, 1995. The Tribunal has decided the appeal of Muhammad Sabir respondent against the promotion of Muhammad Tarooq who had died before filing of the appeal and was not impleaded as a party in the appeal. The Service Tribunal has accepted the appeal and has set aside the order, dated 10th October, 1995 and has restored the order, dated 5th April, 1995.
4. Appellant Muhammad Manzoor was not impleaded as respondent. His stand-point is that he had been promoted as Assistant Warden Fisheries on 22nd January, 1997 during the pendency of the appeal before the Service Tribunal but he was not arrayed as respondent. Apparently the petition for leave to appeal filed in this Court was barred by time and the first question is whether the appeal can be treated as within time. The appellant has furnished explanation for the delay by stating that his appeal is within time from the date of knowledge. He has also filed an application for condonation of delay. The judgment of the Service Tribunal was announced on 24th July, 1999 while the petition for leave to appeal was filed in this Court on 15th November, 1999. After deducting the time spent in obtaining the requisite copies, the petition is belated by fifty days. The case of the appellant is that he came to know about the existence of the judgment of the Service Tribunal on 1st November, 1999 and he filed the appeal within fourteen days on 15th November, 1999. The explanation is as follows:-- "(11) That the petitioner was posted at Authmaqam, with his area of duties extending from Authrnaqam to Taobutt. The petitioner who on account of his departmental/official duties remained busy in the above said area, could not come down to Muzaffarabad on account of his service liabilities coupled with the blockade of the road from Authmaqam to Muzaffarbad due to heavy shelling by the enemy, hence, could not get any knowledge or information about the impugned judgment or the pendency of the appeal, as the case may be, before the Service Tribunal. It was on account of his transfer that the petitioner had to come down to Muzaffarabad on 31st October, 1999, when on the first of November, 1999 he was informed about the impugned judgmnet, consequently, the present petition is being preferred without further undue delay. The application for the condonation of delay in this behalf is being preferred separately."
5. The facts stated in the application are supported by an affidavit and stand uncontradicted that appellant was I osted at Authmaqam and that his jurisdiction extended from Authmaqam to Taobutt. The statement that he did not come to Muzaffarabad on account of his service exigencies and also due A to blockade of road due to heavy shelling by the enemy have to be accepted as true. It is now well-settled that if appeal is filed by a person who was not a party before the Court below limitation runs from date of knowledge. We have no hesitation in accepting the statement of the appellant that he did not know about the appeal and that he came to know about the judgment of the Service Tribunal on 1st November, 1999.
6.The point involved in the case is short but before adverting to the judgment of the Service Tribunal it may be pointed out that, according to the record of the appeal, appellant Manzoor Ahmad was appointed as Assistant Warden Fisheries B-9 on 22nd January, 1997 subject to confirmation by the Departmental Selection Committee. Subsequently on 14th April, 1997 he was promoted to the said post on regular basis on the recommendations of the Departmental Selection Committee No,2. We may observe here that there is no occsion to comment on the legality or otherwise of these orders because it is outside the scope of the present appeal. By the order under appeal the Service Tribunal, by accepting the appeal tiled by respondent Muhammad Sabir, has restored the order passed on 5th April, 1995 with the effect that respondent Muhammad Sabir shall be deemed to be Assistant Warden Fisheries from 5th April, 1995 on regular basis. The Service Tribunal accepted the appeal on 24th July, 1999 on which date, as noted above, appellant Manzoor Ahmad stood promoted on regular basis with effect from 14th April, 1997. It means that an anomalous situation has been created. The promotion order of appellant Manzcor Ahmad issued on 14th April, 1997 was neither challenged nor brought to the notice of the Service Tribunal but respondent Muhammad Sabir has been restored to the same post by the Service Tribunal. The disputed post is unquestionably the same, namely, Assistant Warden Fisheries at Authmaqam. The fault squarely is that of Muhammad Sabir who did not bring this material fact to the notice of the Service Tribunal. In fact circumstances of the case show that appellant Manzoor Ahmad was a necessary party and in his absence no effective order could be passed by the Service Tribunal.
Even otherwise the order of promotion of Manzoor Ahmad remains unaffected by the judgment of the Service Tribunal because it is not binding on him since he was not a party. This ground itself is sufficient to set aside the judgment of the Service Tribunal.
7. On merits also the respondent had no case and in our considered opinion the Service Tribunal has passed an unsustainable order. Appeal was filed before the Service Tribunal by respondent Muhammad Sabir against order of Director-General. Fisheries on 10th October, 1995 which was to the following effect:-- "In the interest of the State and better administration Mr. Muhammad Farooq son of Muhammad Yousaf, resident of Kail Khakhyan Tehsil Authmaqam District Muzaffaraoad who is F.Sc. Pre-Medical is appointed subject to confirmation by the Departmental Selection Committee as Assistant Warden Authmaqam B-9 with usual allowances." [Transalted] ' The respondent challenged this order on the ground that the post of Assistant Warden Fisheries against which Muhammad Farooq was appointed was already occupied by him, (respondent Muhammad Sabir) in light of order passed earlier on 29th November, 1994 read with Order No,75.
Dated 5th April, 1995. The first order was as follows:-- "As recommended by Wild Life Warden Muzaffarabad under No,656, dated 27th November, 1994 and in the interest of State and Administration Muhammad Sabir son of Muhammad Sultan resident of Raawata Authmaqam, who was appointed on temporary/'iwzi' basis as Laboratory Assistant B-11, is appointed as Assistant Warden Fisheries Authmaqam against a vacant post under the orders of Director General Toursim, Wild Life Archeology and Fisheries." [Translated] ' The second Order, bearing No, 75, was as follows:- "The Selection Committee of the Directorate of Toursim, Wildlife, Archeology and Fisheries has approved the confirmation of the appointment made under No,100/4/94, dated 29th November, 1994 with retrospective effect."
8. It is clear from the order, dated 29th November, 1994 that immediately prior to the issuance of the aforesaid order respondent Muhammad Sabir was acting as 'iwzi' Laboratory Assistant. Thus, there can be no manner of doubt that his appointment did not create any right in him. Let us now examine the order of 5th April, 1995 upon which the respondent claimed that he had become the lawful occupant of the post of Assistant Warden Fisheries B-9 and no other person could be appointed against it. The law on initial recruitment to post carrying B-1 to B-15 is contained in Chapter III of the Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service)
Rules, 1977. In short the requirements are that when it is intended to fill in a vacant post the vacancy has to be advertised in the newspapers and then appointments have to be made on the basis of examination or test to be held by the appropriate Committee or the Board (Rule 17). It is on record that the post of Assistant Warden Fisheries was not advertised. This fact was also impliedly admitted by respondent Muhammad Sabir when he appeared as a witness before the Service Tribunal and stated that he did not know whether the post of Assistant Warden Fisheries was advertised or not. This stands settled in a long chain of pronouncements of this Court that advertising a post is a mandatory requirement and if it is not complied with any proceedings taken by the Selection Board are void. The procedure laid down in Chapter III of the Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977 ensures that people will be appointed to Government service on the basis of merit and open competition. The legal position, which we reiterate with emphasis, is that if a post is not advertised all proceedings for the selection or appointment are coram non judice. As held in Muhammad Fayyaz v. Arshid Gillani (1999 PSC 567), selection is the concept of choice between more than one candidate. Therefore, the proceedings taken by Selection Board for confirming the respondent were flagrant abuse of power and cannot be accepted by a Court of law as valid. Therefore, the Service Tribunal clearly fell in error in granting relief to the respondent on the basis of this sham transaction.
9. There is another aspect of the case. Another Order was passed bearing No,72 by Director- General Finsheries on 5th April, 1995, the same day on which Order No,75 reproduced above was issued. This order was filed in original in the Service Tribunal by respondent Muhammad Sabir himself and was as follows:- "Director-General Toursim, Wildlife, Archeology and Fisheries has, in obedience to orders passed by the Minister Toursim and Fisheries, has appointed Mr. Muhammad Sabir Assistant Warden Fisheries Authmaqam as Laboratory Assistant Pheasants Breeding Centre Pattika against a 'iwzi' post and Mr. Muhammad Farooq Laboratory Assistant Pheasants Breeding Centre Pattika is appointed as Assistant Warden Fisheries Authmaqam."
10. It shows that respondent Muhammad Sabir had already been removed from the post of Assistant Warden and had been posted against 'iwzi' vacancy of Laboratory Assistant Pheasants Breeding Centre. The respondent filed appeal against order of 10th November, .1995 by that order, which has been reproduced above, appointment of Muhammad Farooq was made as Assistant Warden Fisheries and there is no mention of the respondent in that order. As seen above he had already been displaced from the post of Assistant Warden and had been appointed as 'iwzi'
Laboratory Assistant. As is well-known 'iwzi' appointment has no legal status. It is the order of 5th April, 1995 bearing No,72 which had the effect of displacing the respondent from the post of Assistant Warden Fisheries but this order was not challenged before the Service Tribunal. He challenged the order passed on 10th of October in which he was not mentioned at all. As already seen Muhammad Farooq had already been appointed as Assistant Warden on 5th April, 1995 through Order No,72. The result is that the respondent filed appeal against an order by which he was not aggrieved and did not challenge an order by which he was aggrieved. Therefore, even if the order of 10th April is vacated, as was done by the Service Tribunal, the order of 5th April, 1995 which refers to the respondent as 'iwzi' Laboratory Assistant still stands.
' Resultantly the appeal is accepted and the judgment of the Service Tribunal is vacated.
Consequently the appeal filed by respondent Muhammad Sabir in the Service Tribunal stands dismissed.