SARDAR MUHAMMAD ASHRAF KHAN (CHAIRMAN).-This service appeal under section 4 of the Azad Jammu & Kashmir Service Tribunal Act, 1975 (hereinafter referred to as an Act) has arisen in the following circum--stances :-
2. The appellant Rafique Akhtar Chowdhary having joined the Azad Jammu & Kashmir Education Department on 1-3-1966 as Senior Teacher was first promoted as Headmaster on 1-4-1967 and that to the post of Inspector Physical Education in grade 18 of the National Pay Scale which was lying vacant due to the retirement of its former incumbent Sh. Ghulam Muhammad vide Government Order No. Admin. 20983-89/76 dated 23-9-1976 "Annexure B). After the appellant had served on the post for about one and half year the respondent on the recommendation of Commission of Inquiry No. 1 reverted the appellant to the post of Headmester vide Order No. S. & G. A. D. 7746-50/78 dated 29-4-1978 on the ground of his being unqualified for the post.
3. Feeling aggrieved by the aforesaid order of his reversion the appellant filed a review petition against it before the respondent but to no avail as the same was dismissed ride Order No. Admin 18244-30/78 dated 13-8-1978 (Annexure `E'). The appellant has now approached this Tribunal for the redress of iris grievances by way of this appeal against the aforesaid orders of his reversion and dismissal of his review petition.
4. The appellant has assailed his impugned reversion mainly on the following grounds :-
(i) That the recommendations of the Commission of Inquiry No. 1 and the impugned orders of the respondent were made without giving him a show-cause notice or affording him an opportunity of being heard.
(ii) That the appellant possessed necessary qualifications and fulfilled the conditions laid down for the appointment to the post of Inspector Physical Education.
(iii) That the constitution of Commission of Inquiry was bad in law and as such the said Commission was not legally competent to make recommedations for the reversion of the appellant.
5. The appeal was contested and written objections were filed by Additional Advocate-General on behalf of respondent in which it is contended that the appeal is barred by time and that neither the show-cause notice nor an opportunity of personal hearing was necessary to be given to the appellant before making the impugned orders.
6. We have heard the learned counsel for the parties and have also gone through the relevant record of the case. The learned counsel for the respondent has raised the preliminary objection that the appeal being time barred is not maintainable as the same has been filed after the expiration of period of 30 days from the date of the communication of the impugned final order of the respondent to the appellant. On the contrary the counsel for the appellant has contended that the impugned order of the respondent dated 13-8-1978 rejecting the review application was never communicated to the appellant who came to know about it only on 5-12-1978 when he applied for the issuance of its copy to him. There is no doubt that on the face of it the appeal appears to be time barred as the same has been preferred on 7-12-1978 whereas the impugned final order of the respondent was made on 13-8-1978 but if the plea of the appellant regarding the date of knowledge of the passing of the said impugned order is accepted then the appeal becomes quite within time. The appellant has filed an application for condonation of delay caused in the filing of present appeal under section 5 of Limitation Act supported by an affidavit to the effect that he only came to know of the rejection of his review petition on 5-12-1978. Although the contention of the appellant regarding non-communication of impugned final order of the respondent to the appellant is controverted by the respondent in para. 5 of its written objections in which it is stated that the order of dismissal of the review petition of the appellant was communicated to him vide letters No. 24361-62 dated 23-8-1978 and No. 18224-30 dated 13-8-1978 sent by the Department of Education and Services & General Administration respectively, but neither the aforesaid letters or copies thereof are attached with the written objection filed by the respondent nor produced the same at any stage during the proceedings of the case. Similarly no other evidence, oral or documentary was produced to prove the communication of the final impugned order of rejection of his review petition to the appellant. Thus the affidavit filed by the appellant in support of his plea regarding the date of knowledge of the passing of the aforesaid impugned order of the respondent stands uncontradicted as no counter affidavit has been filed to rebut the same. On the basis of the affidavit filed by the appellant we hold that the order of the rejection of his review petition came to his knowledge only on 5-12-1978 with the result that the appeal is within time having been filed within 30 days of the abovesaid date of knowledge.
7. Having disposed of the preliminary objection regarding limitation raised by the counsel for the respondent we now proceed to consider the grounds on which the appellant has challenged the impugned order of his reversion. The learned counsel for the appellant has confined his arguments only to one of the grounds on which the impugned orders have been assailed in the memorandum of appeal. He has contended that a show-cause notice to the appellant before passing the impugned order of his reversion was a necessary requirement of law and principle of natural justice and as the same was not given to the appellant, the impugned order of his reversion is void and invalid. The decision of the question as to whether the appellant was entitled to show-cause notice before making his reversion depends upon the determination of the question as to whether the law or miles governing the terms and conditions of service of the appellant enjoin upon the respondent to give him the notice of showing cause for action proposed to be taken in regard to him. Under section 49 of the Azad Jammu & Kashmir Constitution Act, 1974 the appointment of persons to, and the terms and conditions of service of persons in the service of Azad Jammu & Kashmir are to be regulated by law. The law referred to in the above quoted provision of Constitution Act and regulating the appointment to, and the terms and conditions of the persons in the service of State of Jammu & Kashmir and providing for matters connected therewith and encilliary thereto have been enacted by the Azad Kashmir Legislature which is called the Azad Jammu & Kashmir Civil Servants Act, 1976 (hereinafter referred to as an Act). Section of the Act provides that the terms and conditions of the service of the civil servant shall be as provided in the Act and the rules and in section 4 of the same it is provided that the appointment to a civil service of Azad Jammu & Kashmir or a civil post in connection with with the affairs of the Government shall be made in in the prescribed manner by the Government or by a person authori--sed by it in that behalf. According to section 11 of the Act 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. Thus in view of the above-quoted section of the Act the requirement of show-cause notice is done away with in case of reversion from ad hoc or officiating appointment and the competent authority enjoys the uncontrolled power to revert the promotee without following the formality of notice of showing cause against the action proposed to be taken against him. Thus the decision of the question involved in this case with regard to the entitlement or otherwise of the appellant to a show-cause notice before making his reversion depends upon the determination of the nature of his promotion from which he was, reverted i. e. Whether it was on ad hoc or regular basis. The ad hoc and regular appointments are defined in the Act itself in its definition section. According to clause (a) of subsection (1) of section 2 of the Act the ad hoc appointment means appointment of duly qualified person made otherwise than in accordance to the prescribed method of recruitment, pending recruit--ment in accordance with such method and in terms of subsection
(2) of the aforesaid section of the Act and appointment whether by promotion or otherwise shall be deemed to have been made on regular basis if made in the prescribed manner. According to clauses (i) and (j) of subsection (1) of section 2 of the Act the term `prescribed' means prescribed by rules, and 'rules' means `rules made or deemed to have been made under the Act' respectively.
8. In view of the above-quoted provisions of the Act the legal position that emerges is that the terms and conditions of the civil servant employed in Azad Kashmir are governed by the Act; that the Government or its delegatee is empowered to make appointment to a post only in a manner prescribed by the Act or Rules made or deemed have been made thereunder, rind that only those appointments whether by promotion or otherwise which have been made according to the rules prescribed for the purpose would be on regular basis while all others not so made would be on ad hoc or officia--ting basis.
9. When promotion of the appellant from the post of Headmaster in glade 17 to that of Inspector Physical Education in grade 18 in the National flay Scale is examined in the light of the above- stated legal position the inescapable conclusion to which one comes is that the said promotion was only an ad hoc one and not on regular basis. The Azad Jammu & Kashmir government in exercise of the powers conferred upon it by section 58 of the Azad Jammu & Kashmir Interim Constitution Act, 1974 has made rules or the transaction of its business called the Azad Government of the State of Jammu & Kashmir Rules of Business, 1975. (hereinafter referred as Rules of Business). In the said Rules of Business, rule 20 reads as follows :- Rule 20: "Selection Board.-(1) Government may constitute one or more Selection Board 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 matter in which its advice is required under sub-rule (1), the case shall be returned to the Selection Board for reconsideration, and the Selection Board shall reconsider such case. If on reconsideration, the difference still persists, the case shall be submitted to the Prime Minister through the Services and General Administration Department for his orders.
10. In view of subsection (2) of section 23 of the Act the above-quoted rule of Rules of Business shall be deemed to hive been made under the :pct. The said section reads as follow :- "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 any 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, be deemed to be made under this Act."
11. The Government by virtue of powers conferred upon it by rule 20 of the Rules of Business reproduced above had constituted a Selection Board vide order No. S. & G. A. D. 1275-1325/75 dated 17-4-1975 which was entrusted with the function of making recommendations in cases of promotions 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. The post of Headmaster being in grade 17 was in Junior Class I scale whereas the post of Inspector Physical Inspector being in grade 18 was in Senior Class I and as such under the proscribed rules the promotion from the former to latter post was r squired to be made on the recommendations of Selection Board constituted to the Government under the aforesaid order. Since the promotion of the appellant under consideration had been made without the recommendations of the Selection Board it shall be deemed to be on ad hoc basis and not regular one in view of the provision of the Act defining ad hoc and regular appointment and referred to in the earlier part of this judgment. In this view of the matter the promotion in question being an ad hoc one the appellant was not entitled to show-cause notice as matter of right under any law or rule and as such has no cause of grievance if his reversion took place without any previous notice of showing cause. Under the scheme of things as envisaged in the provisions of the Act referred to above a civil servant promoted on regular basis in terms of subsection (2) of the Act only, is entitled to show-cause notice before his reversion to a lower grade or post whereas as ad hoc or officiating promotee can be reverted to his substantive post without going through the formalities of notice of showing cause against the action proposed to be taken against him. In the instant case the principle of natural justice involved in a maxim audi alteram parlem cannot also be pressed into service in that its application stands excluded by the provisions of law contained in section 11 of the Act which provides legal sanctity to reversion of an ad hoc promotee without giving him any prior opportunity of showing cause against it. The oft repeated principle of natural justice that no one should be condemned unheard cannot be pressed into service when its application is specifically dispensed with under any law or statutory rules. In view of the above discussion we have no option but to hold that the respondent was under no legal obligation to afford the appellant an opportunity of show cause or of personal hearing before passing the impugned order as under section 11 of the Act it possessed power untrambelled by any condition of' previous notice to the appellant previous to making an order of his reversion and thus the impugned reversion without show-cause notice has not resulted in the violation or infringement of any terms and conditions of the service of the appellant. As a matter fact liability to reversion of an ad hoc promotee without show-cause notice is an inherent condition of service of an ad hoc appointee under law.
12. The appellant in the memorandum of appeal has also taken the stand that he possessed the necessary qualifications prescribed for the appointment to the post of Inspector Physical Education and in support of this claim he has appended a copy of rules called the Azad Kashmir Education Service (Class I Administrative Branch Men's and Women's Section). Rules 1974 (Annexure E) (hereinafter referred to as Education Rules). After going through the rules we find ourselves unable to agree to the above claim of the appellant. Under rule 3 of the Education Rules the service to which they apply comprises the post-, of Director, Public Instructions, Deputy Director (Schools) Deputy Director (Colleges), Deputy Director Education (General), Deputy Directoress of School and such other class I posts as may be sanctioned by the Government from time to time.
The appellant has neither attached any document with the memorandum of appeal nor has been able to produce any during the course of proceedings of the case which may go to show that the post of Inspector Physical Education has been sanctioned by the Government to the above-stated education service. On the contrary the appellant as well as his counsel has frankly conceded that the Government had not made any order by which the post of Inspector Physical Education has been included in the said education service. Thus when the Education Rules are not applicable to the post of Inspector Physical Education the very contention of the appellant that he qualified to be promoted to the post under the Education Rules become untenable.
13. Another ground taken in the memorandum of appeal that the Commission of Inquiry No. 1 was not legally competent to recommend the reversion of the appellant has not been pressed before us by the learned counsel for the appellant and in our view too it is not substantial or relevant for the purpose of the decision of this appeal as this Tribunal is only competent to examine the legality or otherwise of the order male by the competent authority in respect of the terms and conditions of the service of a civil servant which has been made the subject of appeal before it. The competent authority whose orders have been impugned in the present appeal is Government and thus under the law we are required to confine ourselves to the examination of the orders of the respondent with t view to finding out as to whether or not these are lawful.
14. For the foregoing reasons w: find no merit in this appeal which is accordingly dismissed with no order as to cost.
The parties be informed of this order.
KH. GHULAM QADIR (MEMBER).------I agree.