SARDAR MUHAMMAD AAHRAF KHAN (CHAIRMAN).-By this appeal under section 4 of the Azad Jammu & Kashmir Service Tribunal Act, 1975 Abdul Qayyum Mir appellant has sought to challenge the order No. Commissioner/2529-38/77 dated 22nd October, 1977 made by Commissioner/Rehabilitation Secretary whereby the appellant was discharged from service from the post of Naib-Tehsildar.
2. The facts, in brief leading to this appeal are that the appellant vile Commissioners Order No. CMR/1393-94/73 dated 1-4-1973 (Annexure `A') was approved and enrolled as a candidate for the post of Naib-Tehsildar in the Revenue Department and was also permitted to receive Revenue and Settlement training for the period of one year at his own expense without any obligation on the part of the said Department to provide hint employment. The appellant in pursuance of the aforesaid order received some training in Settlement work and was awarded certificate to that effect by Settlement Officer on 5-2-1975, a copy of which is Annexure 'B' with the appeal. Before the issuance of the aforesaid certificate the appellant was appointed against one of the posts of Girdawars sanctioned in the Jhang Rehabilitation Scheme by the Rehabilitation Commissioner vide his order No. Rehabilitation/8583/74 dated 17-1-1974 (Annexure 'C') who after a few months promoted him against the vacancy of Naib-Tehsildar sanctioned in the budget of the said Scheme vide his Order No. RC/1857-59/74 dated 23-10-1974 (Annexure 'D'). While the appellant was working as such the Commissioner in compliance with the order of the Prime Minister issued an Order No. Commissioner/4223-24/75 dated 23-8-1975 (Annexure `E') thereby the lien of the appellant was kept against a post of Naib-Tehsildar in the Revenue Department, i.e. 23-10-1974 and after some time Commissioner passed another order bearing No. Commissioner/7230-34/76 dated 19-10-1976 making altogether the fresh appointment of the appellant in the Revenue Department as Naib Tehsildar Paishi in the Revenue Commissioner's Office. It would be appropriate to reproduce the said order of the Commissioner which reads as follows :--
3. It appears that some time after the appointment of the appellant in the Revenue Department the President of the Azad Government accepting the demands of the Anjmin. Qanungoyan and Patwarian was pleased to accord sanction for the discharge of those directly recruited Naib- Tehsildars who had not passed the Intermediate Examination in the light of which the Commissioner passed the impugned order discharging the appellant along--with other two Naib- Tehsildars from service but at the same time gave ach of theta an option to accept the appointments to the post of Girdawar in this District subject to its availability. Feeling aggrieved the appellant filled appeal/representation to the Chief Executive against the order of the termination of his services but to no avail as the same was dismissed, Now he has come to this Tribunal to seek redress of his grievances with the prayer for setting aside the impugned order on the following grounds :---
(i) That there exists no law or rule laying down that only the person who hiss passed the Intermediate Examination is eligible for appoint--ment to the post of Naib-Tehsildar.
(ii) That the services of the appellant were terminated without affording him an opportunity of being heard and as such the impugned order has been made in violation of the principle of natural justice embodied in the maxim audi alteram partem.
(iii) That the appellant had not concealed his educational qualification from the respondent No. 2 who was in the knowledge of the fact this the appellant had not passed Intermediate Examination.
4. The appeal was contested by the respondents and written objections were filed on their behalf by their counsel in which it is contended that the impugned order was perfectly legal and justified as the appellant does not possess the educational qualification necessary for the appointment to the post of Naib-Tehsildar under rule 7 (1) (a) of Azad Kashmir Revenue Officers Service Rules, 1970 and has passed only Matriculation Examination: in III Division. It is further alleged that under the relevant rules the appointment of the appellant was on probation for a period of 2 years and the Government was fully competent to dispense with his services during the period of his probation and that the appellant is estopped from challeng--ing the impugned order inasmuch as he in exercise of the option given to him has accepted the appointment to the post of Girdawar made by the Commissioner vide his Order No. Commissioner/6350-52/77 dated 6-10-1977. It is also contended that the appointment of the appellant was made on purely political grounds which was undone on the representation of the Anjamin Qanungoyan and Patwarian which was clamouring for the restoration of the rights of their members which were infringed by the appointments of the appellant and other persons as Naib-Tehsildars who lacked the requisite qualification for appointments to such posts.
5. We have heard the learned counsel for the parties and have also gone through the relevant record and law on the points involved in this case. In the first place it has been argued by the learned counsel for the appellant that it was not a requirement of any statutory law or rule that a candidate for appointment to the post of Naib-Tehsildar- should have passed the Intermediate Examination from any recognized University or Board of Education and as such the order of the termination of the services of the appellant on that ground being neither lawful nor justified is unsustainable. In elaboration of this argument the learned counsel for the appellant has contended that the Azad Kashmir Revenue Officers Service Rules, 1970 (hereinafter referred to as Revenue Officers Rules) which contain a provision to the effect that no person shall be appointed to the post of Naib-Tehsildar unless he has passed the Intermediate or Higher Secondary School Examina--tion from a recognized University or Board of Education has no force in law and consequently if the appellant did not satisfy the condition regarding educational qualification prescribed in the said Rules he does not become ineligible for the appointment to the post of Naib- Tehsildar. This contention of the counsel for the appellant is based on the argument that the Government was competent to make Revenue Rules if it was so empowered by an enactment of the Legislature and since there is no reference in the said Rules to the law under which they are made nor any law has been shown to exist under which they have been made, these rules have no legal farce and can be at the most treated as executive orders or instructions of the Government having no binding effect. In support of this contention he has referred to clause 47 of section 3 of the General Clauses Act, PLD 1902 SC 75 and PLD 1960 Lah. 1001. Clause 47 of section 3 of the General Clause Act defines rules in the following words: "Rules shall mean a rule made in exercise of the power conferred by an enactment and shall include the regulation made as a rule under any enactment."
6. In above-quoted Supreme Court's ruling it has been held that the Karachi Allocation Rules, 1953 which may have been made with reference to fundamental rule 45 which is itself a statutory rule are not statutory rules and at the most may be described as internal regulation for the guidance of an estate office and that no vested right can arise out of such Rules. Similarly in the Lahore case cited above it was held that the departmental instructions issued by authority not competent to make rubs have no force of law and can confer no authority to impose penalty. In view of the clear provision in the General Clauses Act defining rule and the various judicial pronouncements of superior Courts including those referred to by the learned counsel for the appellant there is no room for expression of any doubt that for the rules to be valid and lawful it is necessary that they arc made by a competent authority in exercise of the power conferred on it by an enactment of appropriate Legislature and rules lacking statutory backing are merely executive orders or instructions which neither create any vested right in nor impose any disqualification upon any person. Thus seen in the context of this legal position discussed above we have no hesitation in agreeing to the contention of the learned counsel for the appellant that strictly speaking the so- called Revenue Officers Rules cannot be described statutory rules inasmuch as the same have not been frame under any authority given to the Government by any statute. But at the same time we are also of the firm view that it was fully within the competence of the Government to make a provision with regard to the matter with which we are concerned in the present case namely, competency of the Government to prescribe the educational qualification for eligibility to appointment of a person to the post of Naib-Tehsildar.
7. Section 49 of the Azad Jammu & Kashmir Interim Constitution Act, 1974 (hereinafter referred to as Constitution Act) deals with the services, the relevant portion of which reads as under :- "49.--(1) Subject to this Act, the appointment of a person to and the terms and conditions of a person in the Service of Azad Jammu & Kashmir may be regulated by law."
8. The Azad Kashmir Legislature in pursuance of the above provisions of the Constitution Act enacted the Azad Jammu & Kashmir Civil Servants Act, 1974 (hereinafter referred to as Civil Servants Act) which regulates the appointments to and the terms and conditions of a person in the service of the State of Jammu & Kashmir employed in connection with the affairs of the Government and provides for matters connected therewith or ancillary thereto. Section 3 of the Civil Servants Act provides that "the terms and conditions of service of a civil servant shall be as provided in the Act and the Rules" and section 2 (j) of the same Act contains definition of the rules according to which the rules means the rules made or deemed to have been made under this Act.
Section 23 of the Civil Servants Act confers on the Government the powers to make rules and reads as under :- "Section 23.-(1) The Government, or any person authorised in this behalf may make such rules as appear to him to be necessary or expedient for carrying out the purposes of this Act.
(2) Any rules, regulations, orders or instructions in respect of any terms and conditions of service of civil servants duly made or issued by an authority competent to make them and in force immediately before the commencement of this Act shall, in so far as such rules, regulations, orders or instructions are not inconsistent with the provisions of this Act."
9. The appointment of the appellant in the Revenue Department took place after the coming into force of the Civil Servants Act as is quite evident from the letter of his appointment as Naib- Tehsildar and contents of para. 5 of the memorandum of appeal. As the Government had not framed rules under section 23 (i) of the Civil Servants Act at the time of entry of the appellant into the service, the Karachi Service Regulations which governed the service matters before the enactment of the Civil Servants Act would be deemed to be the rules made by the Government under the said Act in accordance with clause (ii) of section 23 of the Civil Servant Act. Rule 18 of the K. S. R. Volume II lays down that no person shall be eligible for appointment to any service, class, category, grade or any post borne on the cadre thereof unless he-
(i) "Possess such qualifications and has passed such special tests as may be prescribed in that behalf by Government or
(ii) Possess such qualifications as may be considered by Government to be equivalent to the said special qualifications or special tests."
10. From the plain reading of clause (i) of rule 18 of the Kashmir Service Regulations reproduced above it becomes quite clear that the Government was fully empowered to lay down the required qualification for recruitment to a service and thus even if the rule in a Revenue Officer Rules containing a provision to the effect that no person shall be appointed to a post of Naib-Tehsildar unless he has passed the Intermediate Examination of some recognized University or Education Board is not a statutory rules yet it has all the legal force; and binding effect because, as already mentioned above, the Government was competent to prescribe educational qualification for eligibility for appointment to the said post. Therefore, if the Govern--ment has prescribed the qualification necessary to be possessed by a candidate for the post of Naib-Tehsildar by making a provision to tae effect in the shape of a certain rule in the Revenue Officers Rules it cannot be said they by doing so it had acted illegally and without lawful authority and consequently even the person who lacks the educational qualification so prescribed by the Government is qualified to be appointed to the said post by the competent authority.
11. In this view of the matter we find ourselves unable to agree to the contention of the learned counsel for the appellant that it was not legal C necessity for the appellant to have passed the Intermediate examination before he could be appointed as Naib-Tehsildar with the result that his services were terminated unjustly and without lawful cause under the impugned order.
12. The learned counsel for the appellant has next argued that the impugned order is bad in law and without legal effect as the same was not preceded by any show-cause notice to the appellant. His contention is that it was necessary under the principle of natural justice contained in the maxim "Audi Alteram Partem" (nobody should be condemned unheard) that the appellant should have been given an opportunity of showing cause against the action proposed to be taken against him before passing the impugned order.
13. We find little force in this contention of the learned counsel for the appellant because in view of the nature of the appointment of the appellant the aforesaid principle of natural justice was not at all attracted and consequently no show-cause notice was required to be served on him by the competent authority before passing the order of the termination of his services. Section 5 (1) of the Civil Servants Act which, as already mentioned, was in force at the time of the appointment of the appellant in the Revenue Department reads as under: "Section 5. Probation.--(1) An initial appointment to a service or post referred to in section 4, not being an ad hoc appointment, shall be on such probation and for such period of probation as may be prescribed."
14. Provisions of law reproduced above leave no manner of doubt that every initial appointment to a service or post is necessarily on a probation for a period prescribed in that behalf. According to sub-clause (1) of clause (5) of section 2 of the Civil Servants Act prescribed means prescribed by rules. As already held, Kashmir Service Regulations were applicable at the relevant time to the civil servants as under sub-clause (2) of section 23 of the Civil Servants Act the same were to be deemed to have been made by the Government in exercise of the powers vested in it under clause
(a) of the said section of the Civil Servants Act. Thus it is to be seen as to what was the period of probation prescribed under the Kashmir Service Regula--tions. Sub-clauses (v) and (vi) of rule (1) of the Kashmir Service Regulations Volume II define period of probation and probationer respectively as under:- Rule (1), Clause (v) "period of probation" of a member of a service means the period of probation prescribed in these rules or by special notification by Government, together with---
(a) the period until the issue of an order under clause (i) of sub-rule (a) of rule 22 declaring the probationer to have satisfactorily completed his period of probation, or
(6) the period until an order discharging the probationer under clause (ii) of sub-rule (a) of rule 21, clause (i) or (ii) of sub-rule (b) of that rule or clause (ii) of sub-rule (a) of rule 22, takes effect.
Clause (vi) "Probationer" in a service means a person appointed to that "service who has not been declared to have satisfactorily completed the period of his probation."
15. Rule 20 (a) of the said Volume of the Kashmir Service Regulations prescribes the period of probation and runs as follows :- "20. (a) Except as otherwise provided for by special orders of Govern--ment, no person shall be eligible for confirmation as a member of service, until he has been on probation in such service continuously or in the aggregate for a period of two years."
16. The above provisions of the Kashmir Service Regulations dealing with the probationer and period of probation make it quite clear that the minimum period of probation of a civil servant appointed to a post is two years and thus the appointment of the appellant as Naib-Tehsildar was on probation for a period of two years after the expiry of which he was entitled to confirmation in the service. The Government after the appointment of the appellant as Naib-Tehsildar but before the termination of his services had also in exercise of tile powers conferred on it by section 23(i) of the Civil Servants Act made rules called the Azad Jammu & Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977. Rule 7(i) of the said Rules prescribes the period of probation of a probationer by making provision to the effect that a person appointed to a post in a grade against a substantive vacancy shall remain on probation for a period of two years, if appointed by initial recruitment, and for a period of one year if appointed otherwise provided that the appointing authority may extend the period of probation by a further period not exceeding two years in all.
Thus under the aforesaid rule which replaced the earlier rules on the same subject in the Kashmir Service Regulations the appellant was still a probationer in a service at the time of making the impugned order as period of two years had not as yet elapsed since his initial recruitment as Naib- --Tehsildar. This being the case, the appellant was not eligible to show-cause notice before termination of his services by the competent authority within the probationary period in view of the provisions contained in section 14 of the Civil Servants Act the relevant portion of which reads as follows :--- Section 10. Termination of service.--Service of a Civil Servant may be terminated without notice, (i)
During the initial or extended period of his probation.
17. It is, of course, true that there is a chain of Judicial pronouncements of superior Courts of Pakistan as well as of Azad Kashmir that the principle of natural justice embodied in the Maxim "Audi alteram partem" is applicable not only to the proceedings in Courts of law and judicial Tribunals but also to proceedings before the administrative authorities and that consequently the provisions of show-cause notice to the person to be proceeded against is invariably to be read in every statute or a rule even if no such provision is made in it. But at the same time it is also a settle principle of law that where requirement of show-cause notice is specifically excluded or dispensed with by an enactment under which the action is being taken against a person then the aforesaid principle of natural justice that no one should be condemned unheard has no application. In this view of the matter the contention of the learned counsel that the impugned order is invalid on the ground of its having been passed without giving a show---cause notice to the appellant is not substantial one meriting any consideration because clause (i) of section 10 of the Civil Servants Act, Specifically excludes the requirement of a show-cause notice to the civil servant before termination, his service during the period of his probation. The scheme of the Civil Servants Act and the rules made thereunder appears to be that every initial appointment to any post made in probation for a minimum period of two years and the person so appointed against a permanent post, though a member of the service, has not yet got a sure footing inasmuch as he does not acquire any substantive right to the post not enjoys the same protection which is given by the law to a permanent member of a service The appointment of the probationer is only tentative sine whose permanent retention in the service depends upon the discretion of the employer who may retain him if he is found fit or :nay terminate his service without show---cause notice in case he considers him unsuitable according to his requirements Thus if the services of the probationer are dispensed with during the period of his probation, he has no cause of complaint either on the ground of any forfeiture of his rights as on the score of non-service of show-cause notice on him because he does not possess any substantial service right and the requirement of show-cause notice is also specifically done away with by the law governing the terms and conditions of his service.
18. The position which emerges from the above discussion, in nutshell, is that the appellant was a probationer in the service at the time of passing the impugned order whose service could be terminated without show-cause notice in terms of the contract of his service as contained in section 10 of the Civil Servants Act. Thus if the appellant was discharged from service on being found unfit for permanent retention in the service by reasons of his suffering from inherent disqualification for not possessing the minimum educational qualification required for appointment to the post of Naib---Tehsildar it cannot be said that by doing so without affording him an opportunity of showing cause the appointing authority had acted in an illegal manner or without lawful authority.
19. Apart from the above legal position even otherwise the non--observance of the principle of natural justice requiring show-cause notice to the person proceeded against has not caused any prejudice to the appellant in view of the particular circumstances of the instant case. The appellant's services were terminated not as a result of any punishment inflicted upon him on account of any misconduct on his part but he was discharged from service on the ground of his ineligibility for appointment to the post of Naib-Tehsildar as he lacked the requisite educational qualification for having not passed the Intermediate Examination. Admittedly the appellant is only a Matriculate. No investigation, therefore, being necessitated into the facts on which the impugned order is. Based the principle of natural justice that no one should be condemned unheard was not attracted and accordingly no show-cause notice to the appellant was called for as the same would not have served the object at explanation underlying the principle of natural justice requiring such a notice.
20. There is another aspect of the case which, while considering the validity or otherwise of the impugned order cannot be lost sight of. As already held somewhere in the earlier part of this judgment rule 18 of Karachi Service Regulations, Volume II which was in vague at the time of appointment of the appellant categorically prohibited the appointment to any service or post of a person who did not possess the qualification prescribed by the Government to be eligible for appointment to such a service or post. In other words it means that the Commissioner who was an appointing authority in case of Naib-Tehsildars was only empowered to make appointment to the post of Naib-Tebsildar of a person who fulfilled the required educational qualification and since the appellant had not passed the Intermediate Examination prescribed by the Government to be the minimum educational qualification for appointment to the said post, his appointment was ab initio void and of no legal effect.
21. It needs hardly any mention that an appointment which is invalid and ultra vires for being ab initio void does not carry with it any rights which are otherwise normal incidents under the service laws of lawful and regular appointment. The appellant, therefore, cannot take any exception to the impugned order made by a competent authority upsetting his illegal appointment by way of rectification of an error found to have been committed in making his initial appointment.
22. For the foregoing reasons we find no justification in interfering with the impugned order and accordingly the appeal is dismissed with no order as to costs.
23. It appears appropriate to mention here that now section 23 (i) of the Civil Servants Act empowers the Government to make rules to carry out the purpose of the said Act. Therefore, the copy of this judgment may be sent to the Secretary Services and General Administration Department with the remarks that it is high time that the Government may consider the advisability of removing the legal lacuna in the Revenue Officers Service Rules, 1970 by providing legal sanction to the said rules with a view to avoiding future complications likely to arise in their application.
KHAWAJA GHULAM QADIR (MEMBER).-I agree.