KHAWAJA GHULAM QADIR (MEMBER).-This is a service appeal under section 4 of the Service Tribunals Act, 1975, whereby appellant Mr. Qamar-uz-Zaman Niazi has challenged the validity and legality of the above mentioned impugned order dated 5-12-77 by which the appellant was degraded from National Pay Scales Nos. 18 to 16.
2. The facts out of which this appeal has emerged are concisely stated below :-
(i) The appellant joined the service in Azad Jammu & Kashmir as Superintendent Training Centre Industries and Commerce Depart--ment under the respondent in 1964. The appellant held the said post till 13-8-75, when he was promoted to the post of Deputy Director Industries vide order Abmin/No. 14691-96/75 dated 13-8-75 subject to the recommendations of Selection Board against a vacant post of which the appellant assumed the charge on 23-9-1975.
(ii) One Mian Arshad Ahmed, Assistant Director Minerals filed a review petition to the respondent Government against the order of promo--tion of the appellant which was rejected by the respondent and it was further ordered that the post of Deputy Director shall be advertised by the Public Service Commission and the Commission would select a duly qualified candidate within 6 months after allowing the appellant also an opportunity to prove his eligibility and suitability for selection for the said post,
(iii) the appellant shall continue to hold the post till the re--commendations of Public Service Commission were received. Consequently, the Public Service Commission advertised the post and after interviewing all the candidates including the appellant it selected the appellant and submitted its recommendations to the Government vide No. P. S. C. 1873/76 dated 17-11-1976. The then Prime Minister vide his Note No. P. M. S/884/77 dated 13-3-1977 marked to the Chief Secretary confirmed the appointment by pro--motion of the appellant as Deputy Director Industries in the light of the recommendation of the Public Service Commission, and directed the issuance of Government Order accordingly which never issued.
(iv) It was on 5-12-1977 that the respondent issued the impugned order with immediate effect sanctioning the reversion of the appellant to his original post in Grade 16 without assigning any reasons. The appellant filed a review petition against the impugned order to the respondent Government which remained undecided beyond 90 days. Hence the appellant has assailed the impugned order on the following grounds, namely :-
(a) that the order in question was passed in clear disregard of the deep established maxim of `audi alteram partem' as the appellant was never afforded an opportunity of being heard before passing the impugned order which affected his legal rights adversely.
(b) that the promotion of the appellant was later confirmed by the Public Service Commission as well as by the then Prime Minister of Azad Kashmir and consequently the order of promotion had become final and irrevocable.
(c) that the impugned order was mala fide and illegal. In the end the appellant prayed that the impugned order dated 5-12-1977 be set aside and, in consequence, appellant be ordered to be restored to his post of Deputy Director Industries w.e.f. The date of his reversion.
3. The respondent filed written objections praying for the dismissal of appeal with costs as it was alleged;
(i) that the appellant was not duly qualified to hold the post in question and as such his appointment by promotions was against set principles of law with the result that no notice was legally necessary before undoing his promotion;
(ii) that the work of the appellant was not satisfactory;
(iii) that recommendations of Public Service Commission were declared void.
4. We have heard the arguments advanced by the learned counsel for the parties at length and have also perused carefully the record of the appeal. The main contention of Shiek Abdul Aziz the learned counsel for appellant, on which he made strenuous efforts to build up the edifice of his arguments, was that since the appellant was duly qualified for the post and also was selected by Public Service Commission through competitive examination and recommended for confirmation by the Government and the Prime Minister bad accordingly accorded his sanction to the confirmation of appellant, therefore his promotion had become final vesting a valuable right in him which could never be snatched away from him without giving him a show-cause notice in conformity with the well-established principle of natural justice enshrined in the age old and well renowned maxim of 'audi alterem partem' based on the principle that no one should be condemned unheard. In support of his arguments he referred to a number of rulings contained in PLD 1957 SC 431, PLD 1955 Sindh 70; PLD 1967 Lah. 491, PLD 1969 Dacca 930, PLD 1958 Kar. 35, PLD 1970 SC 413, PLD 1969 SC 407 and PLD 1978 Kar. 703 to the effect that no order affecting adversely the rights of an employee can be passed by any authority in derogation of the principles of natural justice meaning thereby that no one should be condemned unheard irrespective of the fact whether the affected employee was holding the post permanently, temporarily, or even on ad hoc basis. We are in perfect agreement with the legal proposition put forth by the learned counsel underlying the principle of natural justice and there can be no two opinions about the question that no person can be condemned unheard but before applying this principle to the case of appellant it is to be seen whether the facts of his case fall within the four corners of the maxim 'audi alteram partem' so as to attract its application. This sound principle of natural justice is applied to the case of such persons only who under the contract of service acquire such a valuable right as may be enforced at law and not otherwise as had been oft held in various authoritative judicial pronouncements o superior Courts.
5. Now let us examine the case of the appellant in the light of facts on record and judge as to whether the appellant had acquired under the contract of his service any such legal right as could be enforced in a Court of law. As per order of his promotion dated 13-8-1975 (Annexure 'B') the appellant was promoted against a vacant post as Deputy Director industries subject to the recommendation of Selection Board.
6. Before embarking upon the decision as to whether in the circumstances of the instant case a show-cause notice ought to have preceded the impugned order it would be pertinent to determine the nature of the impugned promotion order of the appellant in order to adjudge and determine if before making the order of reversion a show-cause notice was an essential legal requirement which could not be departed from in any case. For the correct appreciation of the local position analysis of relevant law and rules applicable at the time of passing the order in question would be necessary and expedient.
7. Under section 49 of the Azad Jammu and Kashmir Constitution Act, 1974 an appointment to and terms and conditions of service of persons in the service of Azad Jammu & Kashmir are to be regulated bylaw. The Azad Jammu and Kashmir Legislative Assembly enacted the Civil Servants Act, 1976, for purpose of regulating appointments to and the terms and conditions of service of persons in the service of the State of Jammu & Kashmir and to provide for matters connected therewith or ancillary thereto. Section 3 of this Act lays down that terms and conditions of service of a civil servant shall be as provided in this Act and the rules Subsection (2) of section 2 of this Act provides that for the purpose of this Act an appointment, whether by promotion or otherwise, shall be seemed to have been made on regular basis if it is made in the prescribed manner. Clause (a) to subsection (i) of section 2 of the Act defines ad hoc appoint--ment as an appointment of duly qualified person made otherwise than in accordance with the prescribed method of recruitment, pending recruitment in accordance with such method. Clause (i) of the same subsection define the word 'prescribed' as meaning 'prescribed by rules. Clause (j) of this subsection defines the word 'rules' as meaning the rules made or deemed to have been made under this Act.
8. Section 23 of the Civil Servant Act, 1976, made a provision for making rules for carrying out the purpose of the Act which 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 for as such rules, regulations, orders or instructions are not inconsistent with the provisions of this Act, and shall be deemed to be made under this Act.
9. Since no fresh Rules of Business seem to have been made under the Act for carrying out its purpose, therefore, the previously made rules called "The Rules of Business, 1975" made under the Azad Jammu & Kashmir Interim Constitution Act, 1974, shall be deemed to have been made under the Civil Servants Act, 1976, as provided under sub-clause (2) of section 23 of the Act as referred to above.
30. Rule 20 of the 'Rules of Business, 1975 empowered the Government to constitute Selection Boards in the following words :-- Rule 20. Selection Board.--(1) Government may constitute one or more Selection Boards and specify the appointments and promotions to posts other than those to be made on the advice of the Public Service Commission, to be made on the advice of such Selection Boards.
(2) If in any case, a Department does not propose to accept the advice of the Selection Board in regard to a matter in which its advice is required under sub-rule (1), the case shall be returned to the Selection Board for reconsideration, the difference still persists, the case shall be submitted to the Prime Minister through the Services and General Administration Department for his orders.
11. In exercise of the powers vested in it under rule 20 of the Rules of Business the Government vide Order No. S. & G. A. D./1275-1325/75 dated 17-4-1975 constituted a Selection Board entrusting the function of making recommendations in certain cases or promotions which order is reproduced below :- "In exercise of the powers vested in him under rule 20 (1) of the Rules of Business, the President, Azad Government of the State of Jammu & Kashmir is pleased to constitute a Selection Board with its composition as under :-
1. Chief Secretary.
Chairman
2. Secretary Home.
Member.
3. Secretary Revenue Member
4. Secretary Services and General Adminis--tration.
Member
5. Secretary Law.
Member.
(2) This Board shall recommend cases of promotion from junior Class I to Senior Class I and from Senior Class I or any higher post or pay scale to any higher post or pay scale.
(Sd.) Secretary, S&GAD
12. No other Selection Board seems to have ever been constituted for recommending the cases of promotion of Officers below the status of Junior Class I as the appellant also does not rely on such other Board in his case. Now critically examining the case of the appellant in the light of the foregoing provisions of law and Rules as applicable to him at the relevant time there remains not an iota of doubt that the appointment of appellant by promotion to the post of Deputy Director Industries was matter of promotion to Senior Class I and such an appointment could termed as on regular basis only if the same was made in the prescribe manner on the recommendation of Selection Board as laid down in the Government Order No. 1275-1325/75 dated 17-4-1975 and not otherwise. As a result an appointment which is not made on regular basis as defined earlier would amount to an ad hoc appointment by promotion as defined under clause (a) to subsection (1) of section 2 of the Civil Servants Act alluded to earlier.
13. He appointment by promotion of the appellant as Deputy Director was made subject to the recommendations of Selection Board correctly as regular appointment could be made only on tire recommendation of the Selection Board under the prevalent rules as clarified above vesting legal rights in the appellant in respect of his terms and conditions of service enforceable at law. In other words unless and until the appointment of the appellant was regularised on the recommendation of Selection Board the status of the appellant remained that of an ad hoc, temporary or officiating appointee all along as appointment having been made otherwise than in accordance with the prescribed method and no show-cause notice was required to be served upon the appellant before making the impugned order.
14. Having thus determined the legal status of the appellant as ad hoc promotee now we proceeded to consider if in the case of his reversion the appellant can successfully contend that his reversion was illegal and ultra vires as the impugned order was passed without affording him an oppor--tunity of being heard in clear disregard of any law, rule or principle of natural justice which principle in various judgments of superior Courts is held always to be read into a statute, law or rule unless expressly dispensed with by the relevant law or rule itself.
15. Since the terms and conditions of civil servants in Azad Kashmir are governed by the Civil Servants Act, 1976, the Act itself provides in section 11 the method how an ad hoc or officiating appointee shall be dealt with. Section 11 of the Act reads as under :- "Section 11. Reversion to a lower grade or service.-A civil servant appointed to a higher post or grade on ad hoc or officiating basis shall be liable to reversion to his lower post or grade without notice."
16. Now as shown above the law itself has expressly taken away the a fight of show-cause notice in the case of a person who holds any appoint--ment on ad hoc or officiating basis with the result that the principle of natural justice enshrined in the maxim `audi alteram partem' is rendered inapplicable in such cases and an ad hoc or officiating appointee can rightly and legally be reverted without any notice to him.
17. In the face of this legal position of the case of appellant we are constrained to differ with the learned counsel for the appellant that the impugned order was bad in law as the appellant was condemned unheard and, in consequence, we are of the firm view that no show-cause notice before passing the impugned order of reversion was necessary as the same was done away with by the law itself in express words. Even if for arguments sake it be said that the appellant was holding the post not as an ad hoc appointee but as an officiating even then the appellant has no case as the status of an officiating officer is in no way different than that of an ad hoc appointee so far the requirement of show-cause notice is concerned. As such all the citations referred to by the learned counsel for the appellant have no application to the appeal in hand as, in contrast to this case, the question of an ad hoc appointment was neither involved nor considered in these rulings and thus are distinguishable to this extent. Some of these rulings only go to establish and confirm that where a legal right vests in any civil servant under any law and the right of being heard is not taken away expressly by the same law then the aggrieved civil servant shall in no case be punished or condemned unheard in violation of the principle underlying the main `audi alteram partem' which is not the case of the appellant as previous to his reversion no legal right of any sort had ever vested in him under any law.
18. The next objection of the appellant to the validity and legality of the impugned order as raised in the memorandum of appeal and also relied upon in his arguments by the learned counsel of the appellant is that since the promotion order of the appellant was later confirmed by the Prime Minister of Azad Kashmir so the order in question had acquired finality and was irrevocable thereby vesting a right of permanent promotion in the appellant.
19. We do not feel convinced by this argument for the appellant too because, as discussed above in detail, the only competent body or authority to recommend the promotion of an officer to a post falling in grade 18 (Senior Class I) or above was the Selection Board appointed by the Government vide order No. S&GAD/1275-1325/75 dated 17-4-1975 referred to in an earlier paragraph and no other authority could legally recommend promotion of art officer to such a post. It was in view of this legal position that the promotion of the appellant was made subject to the recommendations of the Selection Board otherwise reference could easily have been made to Public Service Commission. In other words Public Service Commission was in no way competent or concerned to recommend the case of appellant for promotion to Senior Class I post, i.e. (Grade 18). If in the presence of this legal position the Prime Minister happened to direct that the post of Deputy Director Industries be advertised by the Public Service Commission who shall select and recommend any suitable person for the said post and the Commission accordingly selects and recommends any person for the that does not mean that the direction of the Prime Minister and conquest selection of the Public Service Commission and confirmation by the Prime Minister of .The appellant in clear diregard of the Government Order acquired legal status and became valid without any amendment of the Government Order dated 17-4-1975 quoted above. An order which is legally wrong and incorrect can never vest or create any right enforceable in law and thus confirmation of the promotion order of appellant by the Prime Minister in pursuance of recommendation of Public Service Commis--sion does not validate the promotion of the appellant or vest any valuable right in the appellant as may be enforced through a Court of law or Tribunal.
Apart front it the order of Prime Minister regarding confirmation of the appellant as Deputy Director was never given effect to or carried out and as such original order of promotion of the appellant remained intact which was later rescinded by reverting the appellant to his substantive post.
20. In this view of the matter the contention of the learned counsel far the appellant is repelled as being without any force or substance.
21. The last argument of the appellant was that the impugned order was mala fide and illegal. We have not been able to find any mala fide from the record and the learned counsel for the appellant has also not been able to point out any such mala fide of the respondent. As a result this contention of the appellant also falls to the ground as baseless.
22. For the reasons stated above we find no merit in this appeal which a dismissed with no order as to costs.
23. The parties be informed of this order.
SARDAR MUHAMMAD ASHRAF KHAN (CHAIRMAN).--I agree.