' MUHMAMMAD YUNUS SURAKHVI, J.---This appeal, by way of leave to appeal of the Court, has been directed against the order and judgment passed by the Service Tribunal on 12-6-2001, whereby the order, dated 19-5-1999 was set aside and the case was remanded to the department with the direction that the post of Naib Qasid be filled in after inviting fresh applications.
2. The necessary facts, giving rise to the present appeal, are that in Government Girls High School Mirpur, Tehsil Athmaqam, the appointment of one Mst. Lal Jan as Naib Qasid was declared illegal and void by the High Court vide its judgment, dated 7-4-1999. The Departmental Selection Committee, approved by the District Education Officer, Muzaffarabad, on 30-3-1998 readvertised the post in question and invited the application from qualified candidates. In response to said advertisement Mst. Saiqa Bibi, appellant herein, and Munir Hussain, respondent No,8, alongwith others submitted their applications and after holding the test, the merit list was prepared. The appellant got first position in the merit list and was declared as successful. In the light of recommendations made by the Selection Committee the appointment order of appellant as Naib Qasid in Girls High Court, Mirpur, Tehsil Athmaqam, was duly issued in accordance with the relevant service law and rules on 30-4-1999 and the appellant after submitting her joining report started performing her duties on assuming charge of the post. On 19-5-1999 the Director Education issued the appointment order of respondent No,8, Munir Hussain, without cancelling the appointment of appellant, without any lawful authority and jurisdictional competence. On obtaining the knowledge of the order dated 19-5-1999 the appellant herein invoked the jurisdiction of the Service Tribunal by filing an appeal on 9-6-1999 calling in question the legality and validity of order, dated 19-5-1999.
The said appeal filed by the appellant was admitted for regular hearing and the respondents were directed to file their written statement. After the necessary proceedings the learned Service Tribunal accepted the appeal of appellant herein vide its judgment and order, dated 12-6-2001 and set aside the order, dated 19-5-1999 passed by respondent No,4 and in addition thereto the appointment of appellant herein was also set aside. The aforesaid order and judgment of the Service Tribunal to the extent of setting aside the 'appointment of appellant herein alongwith the direction of readvertising the post in question occupied by the appellant is the subject-matter of present appeal which, according to the learned counsel for the appellant, is liable to be set aside.
3. In support of appeal it was vehemently contended by Mr. Farooq Hussain Kashmiri, the learned counsel for the appellant, that under the provisions of the Azad Jammu and Kashmir Service Tribunal Act, 1975, the Service Tribunal is empowered to confirm, modify, set aside and rescind the order under appeal while in the present case the appointment order of appellant dated 3-4-1999 was never impugned before it by way of appeal. Hence by setting aside the appointment order of appellant, the Service Tribunal travelled beyond its jurisdiction, as such to the above extent the judgment of the Service Tribunal is without any lawful authority and beyond the jurisdictional competence. It was also contended by the learned counsel for the appellant that the Service Tribunal ignored the fact that the post of Naib Qasid was from the category of Class IV (B-1) and for the appointment against the same post, the head of institution was the competent authority, who after doing the needful issued the appointment order of appellant and there was no justification for interference in the same by the learned Service Tribunal. The learned counsel vehemently urged that the post in question was to be filled in amongst the local candidates on Union Council level for which the advertisement in the daily newspapers was not essential and the same was done by pasting a notice on the Notice Board within the local limits of Union Council. The learned counsel urged that the respondents are bent upon to appoint Munir Hussain, respondent No,8, on the said post which is on the female side. The learned counsel further contended that the direction given by the Service Tribunal that the post be re-advertised and applications be invited for filling in the same was violative of laws as the Service Tribunal is not vested with any jurisdiction to issue such a direction. The learned counsel in support of his contention placed reliance on a reported case titled Abdul Khaliq Primary Teacher, Rajkot v. Zaheer Ahmed and 4 others (2000 PLC (C.S.) 706).
4. Mr. Abdul Rashid Karnahi, the learned Assistant Advocate-General, appearing on behalf of the respondents, did not oppose the contentions raised by the learned counsel for the appellant. He pressed into service the submission that in the female institutions the appointment of male Naib- Qasid is against the law and the said precedent must be avoided.
5. After hearing the respective contentions of the learned counsel for the parties and perusing the impugned judgment passed by the Service Tribunal we are of the opinion that the Service Tribunal committed no illegality in accepting the appeal and remanding the case to the department with the direction that the post of Naib-Qasid be filled in by inviting fresh applications as prescribed in rule 17 of the Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service)
Rules, 1977. The main thrust of the learned counsel for the appellant is that the Service Tribunal is not vested with any jurisdiction to give a direction of the kind which was given in the instant case.
We are afraid that we cannot subscribe to the view of the learned counsel for the appellant.
Section 5, subsection (2) of he Azad Janunu and Kashmir Service Tribunals Act, 1975 provides as follows:- "A, Tribunal shall, for the purpose of deciding any appeal, be deemed to be a Civil Court and shall have the same powers as are vested in such Court under the Code of Civil Procedure, 1908, including the powers of-- XXX XXX xxxx XXX xxxxx.
' Thus, the provisions of Civil Procedure Code being applicable in the service matters, the Service Tribunal was not debarred from issuing the direction that the post in question be filled in by readvertising the same and inviting the fresh applications. Rule 17 of the Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977, reads as follows:- "Initial appointment to all posts in Grade-1 and above except those filled under rule 6, shall be made on the basis of examination or test to be held by the appropriate Committee or the Board, as the case may be, after advertisement of the vacancies in newspapers, or in the manner to be determined by the Government."
6. In the instant case it was rightly pointed out by the Service Tribunal that neither the post was advertised in the newspapers nor the mode was determined by the Government. The Service Tribunal thus by issuing the direction that the post in question be filled in after advertisement of vacancy in the newspapers or in the mode to be determined by the Government, committed no fault.
7. In the authority cited by the learned counsel for the appellant titled Abdul Khaliq, Primary Teacher, Rajkot v. Zaheer Ahmed and 4 others (2000 PLC (C.S.) 706) it was observed that the Service Tribunal dismissed the appeal holding that it was not maintainable but despite that dismissal directed the authority to investigate the dispute between the parties and to pass a final order. After finding that the appeal was not maintainable, no power was to with the Service Tribunal to issue any direction. The Service Tribunal only act on appeal and could only set aside, vary or modify the order against which the appeal was filed before it and had no suo motu powers to issue any direction or pass any order after doing any such action. Direction given the Service Tribunal being not covered by any of the said actions. Supreme Court vacated the same. The above authority is distinguishable for the simple reason that when the appeal filed before the Service Tribunal itself was not competent and it dismissed the same observing therein that it was not maintainable, there seems to be no fun in issuing the directions. In the instant case it is not the case of either of the parties that the appeal before the Service Tribunal was not competent or was not maintainable but despite that the Service Tribunal issued a direction which was not within its competence. Therefore, the citation relied upon by the learned counsel the appellant merits no consideration.
8. Both the learned counsel for the parties have brought our attention to the fact that it is not a good precedent to appoint male servants in female institutions. The contention of the learned counsel for the parties seems to be correct. In female institutions of Azad Jammu and Kashmir the preference should be given to the appointment of female servants unless there be some compelling reasons.
' In the light of what has been stated above, finding no force in this appeal, the same stands dismissed with no order as to costs.