' CHAUDHARY MUHAMMAD TAJ, J---The above captioned appeals, by leave, arise out of a judgment of the High Court dated 6-5-2003 as such are disposed of by this common order.
2. The facts are that respondents Nos.1 to 8 in both the appeals were removed from their service by the Chairman, Pearl Development Authority, Rawalakot (appellant herein in Civil Appeal No.107 of 2003). They filed a Constitutional petition challenging their removal under section 44 of the AJK Interim Constitution Act, 1974 before the High Court. The writ petition was dismissed in limine.
Hence, appeal was filed before this Court which was accepted and the case was remanded to the High Court. The learned Judge in the High Court after conclusion of the petition accepted it and the respondents were restored to their service. Two appeals, one on behalf of, the Chairman, Pearl Development Authority, Rawalakot and the other by the Azad Government were filed before this Court.
3. M/s. Raja Muhammad Hanif Khan and Sardar Muhammad. Sadiq Khan, the learned counsel representing the appellants, raised following points in support of the appeals:-- (i.) That the respondents were appointed against law as their posts were not created in accordance with the provisions of the Pearl Development Authority Act, 1993. It was added that the posts were created by the Chairman, Pearl Development Authority who had no lawful competence without sanction by the Financial Advisor as such the appointments being contrary to law were cancelled;
(ii) that after remand of the case by this Court the writ petition was not admitted for regular hearing and further proceedings were taken which were illegal as such the order was not maintainable; and
(iii) that no writ petition was competent for protection of the illegal gain, therefore, order passed by the High Court suffers from an illegality.
4. Kh. Attaullah Chak, who appeared on behalf of the respondents, while controverting the arguments addressed on behalf of the appellants, argued on the following manner:--
(i) That no notice was issued to the respondents before their removal from service as such they were condemned unheard, therefore, the High Court correctly exercised its jurisdiction in setting aside the order of their removal by accepting the writ petition;
(ii) that out of many other employees of the Pearl Deyelopment Authority the respondents were selected for removal from service arbitrarily. The act of the appellants apart from the fact that it was illegal and arbitrary was also discriminatory in nature;
(iii) that the respondents were appointed in accordance with the provisions of Pearl Development Authority Act. It was explained that the Chairman had all the powers in absence of constitution of a Board who had lawfully created the posts and also made appointments.
5. We have heard the learned counsel for the parties and also gone through the record. The first question requiring determination is whether the appointments, as claimed by the appellants, were illegal on account of their posts created by the Chairman, Pearl Development Athority and making their appointments.
6. Through an Ordinance issued on 13-1-1993 the Pearl Development Authority, Rawalakot was established. Subsequently, on 16-3-1993 an Act of the Assembly came into existence called as the'Pearl Development Authority Act, 1993. All the powers in respect of administration and general directions vested in the Board of Pearl Development Authority which had to exercise powers and do all acts and had to function in accordance with the guidance on question of policy by the Government from time to time. The said Board consisted of a Chairman and not more than three members to be appointed by the Government including a Financial Advisor. Until the Board was duly constituted the Chairman, subject to such terms as the Government may from time to time give, exercise the powers, discharge the duties and perform the functions of the Board. The Authority, may from time to time, employ such officers, servants, experts or consultants etc., as may consider necessary for the performance of its functions on such terms and conditions as it may deem fit provided the salaried officers and servants of BPS-19 and above could not be appointed except with the previous sanction of the Government. In case of urgency the Chairman could appoint such officers, servants, experts or consultants on such terms and conditions as he may deem fit but such appointments were required to be reported to the Board without unreasonable delay. The Authority could lay down the procedure for appointment of its officers, servants, experts and consultants and was also competent to take disciplinary action against them. A fund was to be formed known as the Pearl Development Authority Fund which vested in the Authority and also utilized by it to meet the charges in connection with the functions under this Act including the payment of salaries and other remunerations to the Chairman, members, officers, servants, experts and consultants of the Authority. For proper perception the relevant provisions of the Act are reprodured:- "5. Management.--(1) The general direction and administration of the Authority and its affairs shall vest in the Board which may exercise all powers and do all acts and thing which may be exercised or done by the Authority;
(2) The Board in discharging its functions shall act on sound principles of development, town planning and housing and shall be guided on questions of policy by such directions as the Government may from time to time give.
(3) xxxx xxxx xxxx xxxx xxxx
(6) Constitution of the Board.--(1) The Board shall consist of a Chairman, and not more than three members, to be appointed by the Government.
(2) The Government shall appoint a Financial Advisor from amongst the Members.
(3) xxxx xxxx xxxx xxxx
(4) xxxx xxxx xxxx xxxx
(9) Duties and functions of Chairman and other members.--(1) The Chairman and other members shall discharge such duties and perform such functions as are assigned to them by or under this Act.
(2) Until the Board is duly constituted, the Chairman shall, subject to such directions as the Government may from time to time give, exercise the powers, discharge the duties and perform the functions of the Board.
(12) Power of the Authority.--(1) Subject to the other provisions of this Act and the rules, the Authority may take such measures and exercise such powers as may be necessary for the carrying out of the purposes of this Act.
(2) xxxx xxxx xxxx xxxx
(3) xxxx xxxx xxxx xxxx (16). Employment of officer and Servants etc.---(1) The Authority may, from time to time, employ such officers, servants, experts or consultants as it may consider necessary for the performance of its functions, on such terms and conditions as it may deem fit: ' Provided that salaried officers and servants of BPS-19 and above shall not be appointed except with the previous sanction of the Government.
(2) Subject to the proviso to subsection (1), the Chairman may, in case or urgency, appoint such officers, servants, experts or consultants on such terms and conditions as he may deem fit: ' Provided that every appointment made under this subsection shall be reported to the Authority without un-reasonable delay.
(17) Recruitment, conditions of service and disciplinary powers.--Authority may lay down the procedure for the appointment, of its officers, servants, experts and consultants and shall be competent to take disciplinary actions against them.
(21) Pearl Development Authority Funds.--(1) There shall be formed a fund to be known as the "Pearl Development Authority Fund" which shall vest in the Authority and shall be utilized by the Authority to meet charges in connection with its functions under this Act including the payment of salaries and other remunerations to the Chairman, members, officers, servants, experts and consultants of the Authority."
7. A perusal of the aforesaid provisions of law reveals that all powers in respect of appointments of servants, consultants, etc. Vested with the Authority. However, in absence of constitution of the Board, the powers could be exercised by the Chairman as well with certain conditions and also in case of urgency even in presence of the Board the Chairman could exercise certain powers which also included the appointment of certain servants and consultants. But the Chairman had to inform the Authority of aforesaid appointments without any delay. These powers under the Act were exercised in accordance with law till the Pearl Development Authority Act was amended for certain provisions such as subsection (2) of section 6, deletion of subsection (2) of section 9 vide Ordinance dated 12-7-2001. Through another amendment of section 16, subsection (2) of the section was amended and the words "BPS-19 for BPS-16" were substituted and specifically added that no post in the Authority shall be created without prior concurrence of the Finance Department on 12-7-2001. It implies that before amendments referred to above and in absence of constitution of the Authority or the Board or in case of urgency the Chairman could make appointments of servants, experts, consultants etc. But after the amendment incorporated on 12-7-2001 in sections 9, 16 and 17, the powers of the Authority and . The Chairman were restricted. It would be relevant to mention that after the aforesaid amendments the Authority without the prior sanction of the Government could not create any post and the Chairman in urgency could not appoint any servant or consultant in BPS-16 and above. Therefore, it follows that before this amendment the Authority or the Chairman, as the case may be, were competent to create posts and also to make appointments in accordance with law. This also signifies that the Authority or Board previously had the powers to create the posts but the same were taken away through the amendment. The amendment of section 17 provided that the same shall be done with the approval of the administrative department. The said amendments are usefully reproduced:-- "3. Amendment, of section 9, Act XIV of 1993.---In the said Act, subsection (2) of section 9, shall be omitted.
4. Amendment of section 16, Act XIV of 1993.--In the said Act, in section 16;
(a) in proviso to subsection (1) for the word and figure "BPS-19" the words and figures "BPS-16" shall be substituted;
(b) subsection (2) shall be substituted as under:- "(2) No posts on the Authority shall be created without the prior concurrence of the Finance Department."
5. Amendment of section 17, Act XIV of 1993.--In the said Act, full stop at the end of section 17 shall be omitted and thereafter the words "with the prior approval of the Administrative Department" shall be added."
8. In the present case the respondents were appointed before the incorporation of amended provisions in the Pearl Development Authority Act. Made in the year 1997 and 1999. Therefore, there is a little force in the arguments of Raja Muhammad Hanif Khan that the appointments were illegal and the Constitutional petition could not be filed for protection of illegal appointments.
9. There is another important aspect of the case which was attended to by the High Court that the respondents were removed from their services without providing any opportunity of hearing to them. By now, it is a settled proposition of law that before passing an adverse order against a person or imposing a penalty, it is essential to give notice for personal hearing and the same cannot be dispensed with unless there is a specific provision in the relevant law that services of a civil servant could be terminated without serving any notice upon him. Reference may be made to a case reported as Inspector-General of Police and 3 others v. Aurangzeb and 4 others 2002 PLC (C.S.) 785 where it was held as under:-- "5. After hearing the respective contentions of the learned counsel for the parties, it may be stated that it is an admitted fact that before terminating the services of respondents by the Deputy Inspector-General of Police on the basis of order of Inspector General of Police, the Authorities did not provide the respondents an opportunity of hearing. Thus the principle of audi alteram partem was violated by passing the order of termination of respondents. The respondents after their appointment had been rendering their services for a pretty long time and had been receiving the emoluments from the concerned department but all of a sudden they were terminated without affording them an opportunity of hearing thereby violating the principle of audi alteram partem which is almost a principle of universal application. In a case reported as Azad Jammu and Kashmir Government v. Muhammad Siddique Haidri (2000 PLC (C.S.) 714, it was observed by this Court at page 176 of the report in a following manner:- ' In our view the High. Court has rightly quashed the order by which the services of the respondent have been terminated....
"It is well-settled that such a finding cannot be given behind the back of a person who is accused of such an act. Thus the respondent was condemned unheard which is not permissible in law.
Therefore his termination order has been rightly quashed by the High Court.'
' In an unreported case titled Azad Government and others v. Muhammad Munsaf and others (Civil PLA No.65 of 1998 decided on 15-5-1998) it was observed by this Court as follows:-- "I have given due consideration to the matter. It may be observed that irrespective of the fact as to the validity of the aforesaid notification on which the learned counsel for the petitioner relies, the services of the respondents could not be terminated without serving notice upon them. It is well- settled principle of law that if there is a provision in the relevant law that the services of a civil servant can be terminated without serving any notice upon him, then such notice can be dispensed with and not otherwise; where a law is silent with regard to the service of notice, it cannot be dispensed with. Therefore, the High Court has rightly held that the order of removal of the respondents being violative of rule of audi alteram partem is not sustainable.
' The principle enunciated in the above-cited authorities of this Court clearly postulates that before passing an adverse order against a person or imposing a penalty upon him, it is essential to give him a notice for personal hearing and the same cannot be dispensed with unless there is a specific provision in the relevant law that the services of civil servant can be terminated without serving any notice upon him."
10. In view of above, we hold that the order of removal of the respondents by Chairman, Pearl Development Authority without issuance of a notice to them is violative of law as such was not maintainable and was correctly set aside by the High Court and we also without adverting to the other points concur the view taken by the High Court in this regard. Therefore, both the appeals are meritless which are dismissed with no order as to costs.