Syed SHAUKAT HUSSAIN GILLANI vs ABDUL REHMAN ABBASI and 2 others

1. ' SARDAR SAID MUHAMMAD KHAN, C.J.---This appeal, by leave of the Court, has been directed against the judgment of the Sevice Tribunal dated 30-4-1990 whereby the appeal filed by Abdul Rehman, respondent No.1, was accepted and the order of the Secretary Revenue was set aside.

2. ' Brief facts giving rise to the present appeal are that Abdul Rehman, respondent No.1, was promoted as Naib-Tehsildar from the Ministerial staff and was posted in the office of the Collector Land Acquisition, Muzaffarabad, on 19th November, 1987. The appellant who .Was serving as Qanoongo challenged the promotion of respondent No.1 before the Secretary Revenue on the ground that he being a Girdawar was entitled to the promotion in place of Abdul Rehman, respondent No.1. The appeal was accepted and the promotion of Abdul Rehman was set aside.

3. Abdul Rehman, respondent No.1, then preferred an appeal to the Service Tribunal which was accepted and the order of the Secretary Revenue was set aside holding that the promotion of respondent was in accordance with rules.

4. ' We have heard the arguments and perused the record. It has been contended by Mr. Ghulam Mustafa Mughal, Advocate, that the Service Tribunal has committed an error in holding that no Departmental Committee was constituted for promotion from the Ministerial staff as a Naib- Tehsildar. The learned counsel has referred to a notification which shows that in fact in the Revenue Department various Departmental Committees were constituted in pursuance of the rules known as the Azad Jammu and Kashmir Civil Servants (Conditions of Service) Rules, 1977. Thus the learned counsel contended that the Rules of 1980 which govern the appointments of NaibTehsildars cannot be said to be contradictory to the rules known as the Conditions of Service Rules, 1977. The learned counsel maintained that two sets of rules are supplementary to each other and not contradictory.

5. He has contended that in view of that fact the appointment of respondent was not made on the recommendation of any Departmental Committee, thus the same having been made in contravention of rules cannot stand.

6. ' In reply the learned counsel for the respondents argued that irrespective of the contention of the learned counsel for the appellant with regard to the existence of the Departmental Committee and the fact as to whether two sets of rules were supplementary or contradictory to each other, the fact remains that the appellant had no locus standi to challenge the appointment of the respondent because it has been found by the Service Tribunal that quota reserved for Ministerial staff and for Field Staff for promotion as Naib-Tehsildar had already been exhausted at the time when the impugned order was passed. When the learned counsel for the appellant was confronted with the contention of the learned counsel for the respondent, he replied that if respondent was considered despite the fact that there was no quota entitling him to be appointed as Naib Tehsildar, the case of promotion of the appellant could also be considered on the same rationale.

7. We have given our due consideration to the arguments. Irrespective of the controversy regarding the application of the rules, we are of the view that the question of correct application of the rules in the instant case would arise only if the appellant shows that he had right to be considered for promotion as Naib-Tehsildar. The fact that quota in case of Minsiterial Staff and the Field Staff had already stood exhausted, none of the contending parties could claim promotion as Naib Tehsildar as of right. Thus, we are not persuaded by the arguments advanced by the learned counsel for the appellant that promotion of the respondent should be set at naught, despite the fact that the appellant had no right to be considered for promotion as Naib Tehsildar. 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 net 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.

8. ' In view of what has been stated above finding no force in the appeal it is hereby dismissed.