Raja TARIQ AZIZ Versus AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR
KH. MUHAMMAD NASIM, J.---- The appeal (supra), by our leave, has been directed against the judgment of the Service Tribunal dated 21.03.2024, whereby the appeal filed by the appellant, herein, has been dismissed.
2. The facts necessary for disposal of the captioned appeal are that the appellant, herein, is a permanent employee of the Education Department and is currently serving as Assistant Professor Geography (BS-19). It has been alleged that the Azad Jammu and Kashmir Public Service Commission (PSC) had advertised a position for appointment to the post of Lecturer Geography (BS-17). The appellant and the private-respondent, herein, appeared before PSC, however, the private-respondent was recommended and appointed as Lecturer Geography (BS-17), on the recommendations of PSC, vide notification dated 06.10.1999. The appellant challenged the said notification by filing writ petition before the High Court which was dismissed vide judgment dated 26.11.2001. Being dissatisfied, he filed appeal before this Court which was decided on 13.06.2003 while declaring the post occupied by the private-respondent as vacant. The private-respondent filed a review petition before this Court which was dismissed on 08.03.2010. In compliance of the said judgment, the appellant was appointed as Lecturer Geography (BS-17) vide notification dated 21.10.2003. Later on, the private-respondent was granted time scale (BS-20), vide notification dated 18.10.2019 w.e.f. 10.09.2017. The appellant challenged the said notification by way of appeal before the Service Tribunal, wherein, he alleged that the private-respondent has been granted time scale (BS-20) w.e.f. 10.09.2017, vide notification dated 18.10.2019, despite the fact that the appointment notification of the private-respondent was set aside by this Court vide judgment dated 13.06.2003, hence, practically he was no more in service. Moreover, the said notification was neither communicated to the appellant nor was published in the official gazette, hence, the appeal is within time from the date of knowledge. The learned Service Tribunal, after necessary proceedings, dismissed the appeal, vide impugned judgment dated 21.03.2024, hence, this appeal, by leave of the Court.
3. The appellant had engaged Mr. Muhammad Abrar, Advocate, as counsel, however, at the end of the day he appeared on rostrum and opted to argue the case himself. He submitted that the appointment notification of the private-respondent as Lecturer Geography B-17, dated 06.10.1999, was set aside by this Court vide judgment dated 13.06.2003, thus, he seized the status of a civil servant. In this state of affairs, the notification dated 18.10.2019, was liable to be set aside to the extent of the private-respondent. He further submitted that the said notification was neither communicated to him nor was published in the official gazette and in this regard certification issued by the Printing and Stationary Department has been annexed with his appeal as annexure "PE", but despite this the learned Service Tribunal has illegally dismissed the appeal on the ground of limitation as well as on merits. He lastly prayed for acceptance of the appeal.
4. On the other hand, Ch. Shoukat Aziz, the learned Advocate representing respondent No.7, defended the impugned judgment and submitted that the same is perfect and legal. He further submitted that after the judgment passed by this Court on 13.06.2003, the appellant was appointed against another post and the appointment of the private-respondent was protected vide judgment dated 08.03.2010. The learned counsel alleged that the appellant was appointed as Lecturer Geography (BS-17), vide notification dated 21.10.2003. After completion of the required length of service, he has also been granted time scale (BS-20), vide notification dated 24.12.2020, w.e.f. 21.10.2019, and the same has been accepted by the appellant, hence, he does not fall within the definition of an aggrieved civil servant and has no locus standi to challenge the notification dated 18.10.2019.
5. We have heard the appellant as well as the learned Advocate representing the private-respondent and gone through the record of the case made available along with the impugned judgment. A perusal of the record reveals that vide notification dated 18.10.2019, the private-respondent, herein, was granted time scale (BS-20) w.e.f. 10.09.2017. The appellant, herein, challenged the said notification by way of appeal before the Service Tribunal on 09.03.2021, after a period of almost one and a half year. The appellant in ground "E" of the memo. of appeal before the Service Tribunal has furnished explanation regarding the delay in filing the appeal and stated that the said notification was neither communicated to him nor the same was published in the official gazette. In support of his stance, he appended the certification issued by the Printing and Stationary Department along with the appeal. Moreover, a separate application for condonation of delay was also filed accompanied by an affidavit. It may be stated here that under section 4 of the Azad Jammu and Kashmir Service Tribunals Act, 1975, any civil servant aggrieved by any final order, whether original or appellate, made by a departmental authority, in respect of any of the terms and conditions of his service, may, within ninety days of the communication of such order to him or within six months of the establishment of the appropriate Tribunal, whichever is later, prefer an appeal to the Tribunal. After perusal of ground "E" and the certification issued by the Printing and Stationary Department, we are of the unanimous view that the notification impugned before the Service Tribunal was neither communicated to the appellant nor the same was published in the official gazette, hence, the appeal filed by the appellant before the Service Tribunal was within limitation.
6. As the learned Service Tribunal has also decided the appeal on merits, therefore, we intend to discuss the merits of the case. According to the admitted facts, the appellant, herein, was also granted time scale (BS-20), vide notification dated 24.12.2020, w.e.f. 21.10.2019, after completion of the required length of service. The appellant accepted the said notification and appended the same with the concise statement. In case, the appellant was not satisfied with the date, he was granted the time scale, then he should have challenged the said notification by way of appeal. The appellant did not challenge the same for modification, hence he was legally estopped to challenge the notification dated 18.10.2019. According to our considered opinion, under the provisions of section 4 of the Azad Jammu and Kashmir Service Tribunals Act, 1975, a civil servant/appellant has to satisfy the Court that his/her terms and conditions of service have adversely been affected. If a civil servant/appellant fails to point out any violation of the terms and conditions of his/her service, then legally he/she has got no cause of action to file the appeal. In the instant case, after completion of the required length of service, the appellant has been granted time scale (BS-20), vide notification dated 24.12.2020, w.e.f. 21.10.2019 and he accepted the said notification, therefore, he has got no locus standi to challenge the notification dated 18.10.2019, whereby, the private-respondent was granted time scale (B-20). Our this view finds support from the case reported as Syed Shoukat Hussain Gillani v. Abdul Rehman Abbasi and others [1992 SCMR 369 = 1992 PLC (C.S.) 438], wherein, it has been observed by this Court as under:-
".....Under Section 4 of the Service Tribunal Act, 1975 a civil servant is competent to prefer an appeal only if he is found to be an aggrieved person. At least a civil servant challenging the appointment of another civil servant should prima facie, show that he had a chance to be considered for appointment against the civil post at the relevant time. If he is not found to be qualified for appointment either by initial recruitment or otherwise, he cannot be permitted to challenge the appointment of another civil servant on the ground that although he was not qualified to be considered for the appointment yet his rival was also suffering from the same disqualification. The civil servant who invokes the jurisdiction for redressing his grievance must show that he was an aggrieved person as envisaged under the relevant law."
The same view was reiterated in the case reported as Muhammad Matloob Khan and 5 others v. Iftikhar Ahmed and 5 others [2017 SCR 282] wherein, it was held as under:-
".....According to the scheme of law, a civil servant can only be termed aggrieved when any order adversely affecting his legally determined terms and conditions of service is issued. If the claim of civil servant is not based upon any such legally determined or prescribed terms and conditions of service, he has got no legal cause of action or locus standi to file the appeal before the Service Tribunal."
In this state of affairs, the learned Service Tribunal has committed no illegality while dismissing the appeal filed by the appellant on merits.
Resultantly, this appeal, being devoid of any force, is hereby dismissed with costs.
MQ/32/SC (AJ&K) Appeal dismissed.