SARDAR MUHAMMAD ASHRAF KHAN (CHAIRMAN).--This service appeal under section 4 of the Azad Jammu & Kashmir Service Tribunal Act 1975 (hereinafter referred to as the Act) is directed against the order of the Government respondent dated 29-4-1979 whereby the appellant was reverted to the post of Lecturer in the Education Department from that of Assistant Professor.
2. Briefly stated the facts giving rise to this appeal are that Saeeda than Ara appellant was appointed' as lecturer in English in the Education Department vide Government Order No. 321- 24/SE/73 dated 7-1-1973 and was Promoted to the post of Assistant Professor with retrospective effect from 18-8-1975 by exempting her from the conditions laid down for the appointment to the said post in item 3 of appendex (A) of Azad Jammu & Kashmir education Service (Class I Collegiate Branch Women's Section) Rules 1974 tinder Government Order No. Admn./ 15348-55/76 dated 14-6-1976. After she had served on the said post for a period of more than one and a half year the Government respondent on the recommendations of the Commission of Inquiry No. 1 reverted the appellant to the post of Lecturer vide Order S&GAD/7744-50/78 dated 29-4-1978 on the ground of her being unqualified for the post of Assistant Professor:
2. Feeling aggrieved by the aforesaid order of .Her reversion she filed a review petition before the Government against it but as no decision on it was communicated to her even after the lapse of statutory period of 90 days from the date of its filing the appellant has come to this Tribunal for the redress of her grievances.
3. The appellant has challenged the impugned order on the following grounds :---
(i) That she has been promoted to the post of Assistant Professor on permanent basis and as such could not be reverted without serving upon her show-cause notice and affording her an opportunity of being heard, under Azad Jummu & Kashmir Constitution Act 1974 and Azad Jummu & Kashmir Civil Servants Act and since the impugned order was made without giving her any notice of show-cause against the action proposed to be taken with regard to her, the same is unlawful and of no legal effect.
(ii) That it was on the recommendation of the Public Service Commission that the conditions of M.
A. In 1st Class and 5 years teaching experience laid down for the appointment to the post of Assistant Professor were waved and she was promoted to the said post and as such her reversion on the ground that she lacks the requisite qualifications for promotion was unjustified and unlawful.
(iii) That the impugned order is politically motivated in as much as she had been made victim of the wrath her father Pir Ali Jan Shah had earned of the present regime on account of his being Chairman Azad Kashmir Peoples Party, Ex-M. L. A. And Advisor of Ex-Prime Minister of Pakistan.
4. On the basis of above allegations she has prayed that the impugned order be set aside and she be restored to her former position from the date of her reversion with all benefits.
5. The respondent had contested the appeal and put in written objections in which it was alleged that the review petition of the appellant against the order of her reversion has been rejected and that the promotion of the appellant was motivated by political consideration and was made in violation of the Service Rules. It is further contended that the appellant did not possess the necessary qualification laid down for the appointment to the post of Assistant Professor and that no show-cause notice was necessary to be given to her before reverting her to her substantive post.
6. We have heard the learned counsel for the parties and have also gone through the relevant record of the case. The only argument advanced by the learned counsel for the appellant at the bar is to the effect that the impugned order having been made without giving the appellant a notice of showing cause against her reversion, the same is void and ineffective. The learned counsel for the respondent in reply has, on the other hand, contended that the service of show- cause notice on the appellant before passing the impugned order was not the requirement of law and the respondent had unfettered powers under law to order her reversion without any prior notice. Thus the main point that falls for determination in the present appeal is as to it whether or not the appellant was entitled to show-cause notice before passing the impugned order under any law or rules governing the terms and conditions of her service. After going through the relevant law and rules we are of the opinion that it was not incumbent upon the respondent to serve the appellant with a notice of showing cause against the action proposed to be taken against her before pasting the impugned order and in the circumstances of the case the powers vested in the respondent to revert the appellant without going through the formalities of show-cause notice. The Azad Jammu & Kashmir Interim Constitution Act, 1974 (hereinafter referred to as Constitution Act) embodies a provision regarding the service which is contained in its section 49, the relevant portion of which reads as under :--- "Subject to this Act, the appointment of the person to, and the terms and conditions of service of persons in the service of Azad Jammu and Kashmir may be regulated by law."
7. This means that the terms and conditions of the civil servants are to be determined by law to be enacted under the above quoted provision of the Constitution Act. The law enacted by Azad Jammu & Kashmir Legislature to regulate the appointment to, and the terms and condition's of the persons in the service of the State of Jammu and Kashmir employed in connection with the affairs of the Government and to provide for the matters connected therewith or ancillary thereto is called the Azad Jammu & Kashmir Civil Servants Act, lays down that the terms and conditions of service of civil servant shall be provided in the Act and the rules arid section 11 of the same mentions the promotion from which the reversion can be made without notice by the competent authority which reads as under :- "Section 11. Reversion to 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."
8. In view of the provision of the law reproduced above show-cause notice is dispensed with to case of a reversion of a civil servant appointed by promotion to higher post on ad hoc or officiating, basis. In order to determine as to whether a show-cause notice was required to be given to the appellant before making his reversion under law or rules-we have first to find out the nature of the promotion of the appellant i.e., as to whether it was on regular basis or on ad hoc one.
Clause (a) of subsection (1) of section 2 of the Act defines ad hoc appointment as follows :-- "(a) Ad hoc appointment means appointment of a duly qualified person made otherwise than in accordance with the prescribed method of recruitment, pending recruitment in accordance with such method."
9. Similarly sub-clause (2) of the aforesaid section contains definition of an appointment on regular basis which reads as under :-- "(2) For the purpose of this Act, an appointment whether by promotion or otherwise, shall be deemed .. To have been made on regular basis if it is made in the prescribed manner."
10. In view of the definitions of ad hoc and regular appointment given in the Act and reproduced above it becomes quite clear that an appointment whether by promotion or otherwise made in the prescribed manner will be on regular basis whereas one not so made falls under the appointments prescribed as ad hoc or officiating in the Act. In this context the next point which requires determination is as to what is meant by prescribed manner or method. The answer to this question is also found in the provisions made in the Act itself. Under clause (i) of subsection (1) of section 2 of the Act prescribed means prescribed by rules; and under clause (j) of the same `rules' means "rules made or deemed to have been made under the Act". So in order to determine the nature of the promotion of the appellant under consideration what we have to see is as to whether or not the same was made under the rule prescribed for promotion on regular basis. At `the relevant time the Govern--ment in exercise of the powers vested in it under section 58 of the Constitution Act had framed rules for the transaction of its business which are called Rules of Business 1975 (hereinafter called Rules of Business). According to rule 20 of the abovesaid rules as the Government was empowered to constitute one or more Selection Boards and specify the appointment and promotions to post to be made on the advice of such Selection Boards in persuance to the said Rules of Business, the Government bad constituted a Selection Board vide order No. S&GAD/1275- 1325/75 dated 17-4-1975 which is reproduced below :-- "Order In exercise of the powers vested in him under rule 20 (10) 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 RevenueMember:
4. Secretary Services & GADMember
5. Secretary LawMember,
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.)
RAJA ABDUL KHALIQ KHAN, Secretary Service and General Administration Department.
No. S&GAD/1275-1325/75 dated 17-4-1975.
11. The rule 20 of Rules of Business and order whereby the aforesaid Selection Board - was constituted would be deemed to have been made under the Act in view of its provisions contained in section 23 which is to .The following effect :- 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, be deemed to be made under this Act."
12. In view of the above quoted provisions of law under the prescribed method the promotion from the post of Lecturer to that a professor was required to be made on the recommendations of Selection Board constituted by the Government under rule 20 of Rules of Business, There is no denying the fact that the appellant's promotion to the ,post of Assistant Professor was made without the recommendations of the Selection Board and as such the same cannot be categorised as one on regular basis. Since it was not on regular basis having not been made in the prescribed manner it was ad hoc or temporary one. This being the legal position regarding the nature of the promotion of the appellant under consideration, the Government had power uncontrolled and untramelled by any condition of service of prior notice to him to revert the appellant to her lower post and if the Government had done so without giving her notice it has not violated any law or rule governing the terms and conditions of the service of the appellant. As the law stands the reve- -rsion to the lower post or grade of an ad hoc of officiating appointee without notice is an' inherent condition of terms and conditions of his service and if his reversion takes place `without show- cause notice he cannot make any grievance of the violation of the terms and conditions of her service. In such like cases even the principle of natural justice enshrined in maxim "Audi alteram partem", that none should be condemned unheard also cannot be pressed into service because such a requirement of natural justice is specifically excluded and done away with by, the provisions constrained in section 11 of the Act which gives absolute power to the competent authority to order the reversion of an ad hoc or temporary appointee to his lower post or grade without giving him any previous notice of showing cause against it.
13. For the reasons given- above we bold that the respondent was vested with the powers to make reversion of the appellant without notice as her promotion having not been made. In the prescribed, mariner was ad hoc one.
14. The appellant has also taken exception to the impugned order in his memo. Of appeal on the ground that it is motivated by political vindictiveness because her father happened to be the President of Azad Kashmir People's Party, Ex-M. L. A. And Advisor to the Prime Minister of Pakistan.
Although not expressed in specific terms, the appellant by this allegation probably means that the impugned order is mala fide. This ground has neither been pressed at the bar by the learned counsel for the appellant nor anything has been placed on the record in support of the allegation regarding the impugned order being mala fide.
15. It may not be out of place to mention here that it is not the case of the appellant that she was qualified to be appointed by promotion to the post of Assistant Professor. On the contrary she has taken the stand that it was on the recommendation of the Public Service Commission that the Government had promoted her to the said post by relaxing the qualifications prescribed by the rules for, appointment to the said post This means that she admittedly did not possess the requisite qualification for the promotion to the post of Assistant Professor. Her plea that she had been promoted by the respondent on the recommendations of the Public Service Commission has not been found factually correct. On perusal of the Letter of the Public Service Commission to the Government and filed as Annexure `G' with the memorandum of appeal it appears that the Public Service Commission had never recommended the appellant for promotion to the post of Assistant Professor to the Government. On the other hand it is clearly stated in the said letter that she did not fulfil the necessary conditions laid down for the appointment to the said post, and it had only made suggestion to the Government that if the prescribed qualifications were relaxed then she could be considered for the post by it as she was found to be better qualified as compared to other candidate who had appeared for interview before the Service Commission for the said post. This remark of the Public Service Commission by no stretch of imagination, tantamounts to the recommendation for promotion of the appellant to the post of Assistant Professor or relaxation of necessary qualifications prescribed for the said post in the case of appellant particularly.
16. For the foregoing reasons we find no substance in this appeal which is accordingly dismissed with no order as to costs.
The parties be informed of this order.
KHAWAJA GHULAM QADIR (MEMBER).------I agree.