SARDAR MUHAMMAD AAHRAF KHAN (CHAIRMAN).-This service appeal under section 4 of the Azad Jammu & Kashmir Service Tribunal Act, - 1975, is directed against the order of the Commissioner/Revenue Secretary No. Commissioner/1529-38/77 dated 2-2-77 whereby the services of Sarbuland Khan appellant who was Naib-Tehsildar in Revenue Department were terminated.
2. The brief facts forming background to this appeal are that Commis--sioner vide his Order No. CMR/1143-44/73 dated 8-3-73 approved and enrolled the appellant as a candidate for the post of Naib-Tehsildar and also permitted him to receive revenue and settlement training for a period of one year at his own expense with no obligation on the part of the Revenue Department to provide him employment. After the appellant had undergone and completed the necessary training he was appointed Naib-Tehsildar Mangla Dam in District Mirpur in place of one Ch. Mohammad Bashir vide Order No. Commissioner/6495-6493175 dated 22-11-75 by the Commissioner, a copy of which is Annexure `B' with the appeal and while he had been working as such for a period of about two years his service alongwith other two Naib---Tehsildars were terminated by an order dated 2-2-77 referred to in paragragh 1 above on the ground that they had not passed Intermediate Examination but in the same Order they were given option to accept the appointment to the post of Girdawer in their respective districts subject, of course, to its availability. As would appear from the reading of the impugned order itself the same was issued by the competent authority in pursuance of the decision of the Government taken by way of accepting the demands put forthwith by the Anjmin Qanungoin and Patwarian that all those directly recruited Naib-Tehsildars be discharged from service who had not passed the Intermediate Examination.
3. Feeling aggrieved, the appellant filed review petition to the Govern--ment against the order of the termination of his services but as no action to his knowledge was taken on the same, he has now approached this Tribunal to seek redress of his grievances arisen out of the impugned order.
4. The case of the appellant is that he having been appointed in a permanent capacity against a clear vacancy of Naib Tehsildar his services would not be terminated either on the sweet will of the respondent or on the demands of any Anjmin. He has also alleged in his memorandum of appeal that he had not concealed his educational qualification from the appointing authority who while approving the appellant as candidate for the post of Naib-Tehsildar as well as while making his appointment to the said post fully knew that the appellant was only a Matriculate and that the Government with a view to encourging and accommodating the persons from the backward area had adopted the policy of giving concession to them in the matter of educational qualification etc. While making their appointments. The appellant has also assailed the impugned order on the ground that before terminating his services he was not given an opportunity of being heard with the result the impugned order is not sustainable on the ground of violation of principle of natural justice that no one should be condemned unheard. On the basis of above allegation the appellant has prayed that by setting aside the impugned order he be restored to the post of Naib-Tehsildar from the date of his discharge from service.
5. The appeal has been resisted by the respondent by filing written objections in which it has mainly contended that the services of the appellant were terminated on the basis of lawful cause inasmuch as he does not possess the necessary educational qualification of having passed the Intermediate Examination of any recognized University or Board of Education prescribed under the Revenue Officers Rules for eligibility to appointment to the post of Naib-Tehsildar.
6. We have beard the learned counsel for the parties besides going through the relevant law and rules applicable in this case. The learned counsel for the appellant has laid much stress during his argument on the point also taken in the memorandum of appeal that the impugned order is invalid and without lawful authority as the same has been passed without giving the appellant an opportunity of showing cause against the termination of his services. In this context it is argued that it was an unavoidable requirement of principle of natural justice embodied in Maxim "audi alteram partem" that the appellant should have been provided with an opportunity of showing cause against the action proposed to be taken against him and since the aforesaid principle of natural justice was disregarded by not serving any show-cause notice on the appellant before passing the impugned order, the same is bad in law and needs to be set aside on the ground alone.
7. There can be no dispute with the general proposition of law established by numerous judicial pronouncements of superior Courts made in recognition of the aforesaid principle of natural justice that it is imperative to provide a person to be proceeded against with an opportunity of showing cause against the action proposed to be taken against him which is likely to adversely effect his rights in person or property but at the same time there is equally well-established exception to it that where a provision in an enactment under which action is proposed to be taken expressly excludes the requirement of the show cause notice to be given to a person proceeded against, then the above-said principle of natural justice is not attracted and an order made to his disadvantage without a show cause notice does not suffer from any infirmity rendering the same unlawful or of no legal effect. After taxing into considera--tion the facts of the present case we are of the considered view that the aforesaid exception to the principle of natural justice fully comes into play so as to obviate the necessity of serving the appellant with any prior notice requiring him to show cause as to why his services should not be terminated. At the time of making the impugned order the Azad Jammu & Kashmir Legislative Assembly had in pursuance of the provisions contained in section 49 of the Azad Jammu & Kashmir Constitution Act, 1974, already enacted the Azad Jammu & Kashmir Civil Servants Act regulating the appointment of persons to, and the terms and conditions of service of a person in the service of Azad Jammu & Kashmir which contains an enabling provision in its section 10 empowering the competent authority to terminate the services of a civil servant during the initial or extended period of his probation. In our opinion the appellant was still a probationer in the service when his services were dispensed with under the impugned order and as such it was not at all necessary in view of the provision contained in section 10 of the Civil Servant Act to give him any show-cause notice before terminating his services. At the time of the entry of the appellant into service under the Kashmir Service Rules, which held the field in the service matters and governed the terms and conditions of the civil servants, every initial appoint--ment to a service or post was necessarily to be on probation for a period of at least two years. To substantiate our this view the reference may be made to clauses
(v) and (vi) of rule 1 and rule 20 of Kashmir Service Rules Volume II which for the sake of facility of reference may be reproduced respectively as follows: Clause (v), Rule (1): "(v) Period of probation" of a member of service means the period of (?) 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
(b) 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 (a) of rule 22, takes effect.
Clause (vi): "(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.
Rule 20 (a): Except as otherwise provided for by special orders of Government, no person shall be eligible for confirmation as a member of a service until he has been on probation in such service continuously or in the aggregate for a period of 2 years."
8. The bare reading of the above rules leaves no doubt that the appointment of the appellant as Naib-Tehsildar was made on a probation for a period of two years under the then prevalent service rules. Before passing of the impugned order the Civil Servants Act had come into operation and the Government with a view to carrying out its purpose had in exercise of power vested in it under section 23 (i) of the ibid had framed rules called the "Azad Jammu & Kashmir Civil Servants (Appointment and Conditions of Service) Rules 1977, the rule 7 (i) of which deals with the period of probation of a person appointed to a post in service under the Government and reads as follows:- Rule 7 (i): "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 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."
9. Thus under the provision of statutory rules reproduced above which had taken place of the previous rules on the subject under consideration at the time of passing the order under challenge in this appeal, the appellant was still a probationer in the service at the time of termination of his service because the period of two years had not yet expired since his appointment as Naib- Tehsildar in Revenue Department. After having come to the definite conclusion that the initial appointment of the appellant was on a probation for two years which period he had not yet completed when his services were dispensed with under the impugned order we are left with no choice but to hold that principle of natural justice that no one should be condemned unheard was not attracted in the instant case in view of the provisions of e Civil Servant Act as contained in its section 10 expressly doing away with the necessity of giving show-cause notice to a civil servant before terminating his services within his probationary period. The relevant portion of section 10 of the Civil Servants Act runs as under:- Section 10. Termination of service.-(1) "The service of a civil servant may be terminated without notice-
(i) during the initial or extended period of his probation; provided that where such civil servant is appointed by promotion on probation or, as the case may be, is transferred and promoted on probation from one grade, cadre or post, his service shall not be terminated so long as he holds lien against his former post, grade, or cadre, and he shall be reverted to his former grade, or as the case may be, cadre or post;
(ii) if the appointment is made on ad basis hoc liable to termination on the appointment of a person on the recommendation of the selection authority, on the appointment of such person."
10. Thus when the case of the appellant is examined in the light of the above legal position regarding the application of the principle of natural justice under discussion we find ourselves unable to subscribe to the view of the learned counsel for the appellant that the impugned order is unlawful and void for having been made in violation of principle of natural justice in that before passing the same no opportunity was afforded to the appellant to show-cause as to why his service should not be terminated. Although there is a long line of judicial pronouncements of superior Courts which have almost assumed the status of law to the effect that the principle of natural justice enshrined in the Maxim that no one should be condemned unheard should always be observed even in proceedings before administrative Tribunal or authorities and thus no order likely to adversely affect any vested rights or a person should be made unless person so affected has been provided with an opportunity of showing cause against it and that the aforesaid principle of natural justice is to be invariably read in every statute or enactment notwithstanding the fact that no such provision is made in it but at the same time it is also equally undisputed proposition of law that the above legal position is subject to one exception already indicated somewhere earlier namely that if an enactment under which the action is being taken against any person expressly takes away the right of person to be proceeded against to a show-cause notice then the principle of natural justice in question ceases to have its application and an order made by a competent authority cannot be struck down merely on the ground of its having been passed without affording an opportunity of being heard to a person adversely affected by it.
11. Apart from the above legal position in regard to the application of the principle of natural justice requiring service of show-cause notice in judicial and administrative proceedings we are also of the view that in the facts and circumstances of the present case the very purpose underlying the aforesaid principle of natural justice that the person proceeded against should have an opportunity of putting his defence to or to give explanation against the allegation or allegations on which action is proposed to be taken against him would not have been served in the instant case even a show-cause notice had preceded the impugned order. The termination of the service of the appellant has taken place not as a measure of any punishment on account of his some misconduct but it is a termination simpliciter for the only reason that the appellant does not possess the educational qualification prescribed under the rules for appointment to the post of Naib-Tehsildar. The appellant does not dispute the fact that he has not passed the Intermediate examination of any recognized University or Board of Education which is alleged to be the minimum qualification prescribed by the Government for eligibility for appointment to the post of Naib-Tehsildar. Thus if educational qualification of a specific standard was necessary to be possessed by a candidate for the post of Naib-Tehsildar and the appellant admittedly lacks such a qualification, then, the serving of notice on the appellant for showing cause as to why he should not be discharged from service for not satisfying the condition in regard to the educational qualifications prescribed under the rule for appoint--ment to a post being held by him would not in any way had helped the appellant in meeting the ground of his discharge from service and to us it would have been an exercise in futility in that there is no disagreement between the parties about the appellant being only a Matriculate. In this view of the matter when there was no necessity of any investigation being made into a fact on which the impugned order is based the non- observance of principle of natural justice by the failure of the competent authority to give show- cause notice to the appellant before terminating his services has not caused any prejudice to the appellant vitiating the impugned order.
12. Although not raised in the grounds of appeal as contained in memorandum of appeal yet the counsel for the appellant has also taken exception to the impugned order on the point that the ground on which it proceeds being unlawful and uninforceable was not available to competent authority to make it the basis of the removal of the appellant from service and consequently the impugned order is unwarranted in law. In this context it is argued by him that there is no statutory law or rule which makes it incumbent upon a candidate for the post of Naib-Tensildar to have passed the Intermediate Examination of any recognized University or Board of Education with the result that in the absence of any such legal requirement of possessing the aforesaid educational qualification appointment of the appellant was perfectly valid and lawful despite the fact that the appellant is only a Matriculate. His above contention is based on the argument that the Azad Jammu and Kashmir Revenue Officers Rules, 1970 (hereinafter referred to as Revenue Officers Rules) which have been relied upon by the learned counsel for the respondent to defend the impugned order on the ground that it was necessary for the candidate for the post of Naib- Tehsildar to have passed the Intermediate Examination have no legal force and binding effect and as such the service of the appellant could not be terminated on the score of his lacking the educational qualification laid down in the said rules. The learned counsel has questioned the validity of the Revenue Officers Rules on the ground that the Government could only frame the same if it was so empowered by an enactment of the Legislature but since there is no reference in the said rules themselves to the law under which they are purported to have been made nor any law has been shown to be in existence authorising the Government to make such service rules, the Government in framing Revenue Officers Rules has acted without lawful authority and consequently these rules are of no legal force or binding effect which at the most can be treated as executive orders or instructions of the Government the non--compliance of which by an Appointing Authority does not invalidate the appointment of the appellant. In support of his above contention he has placed reliance on clause 47 of section 3 of the General Clauses Act, in PLD 1960 SC 75 and PLD 1962 Lah. 1001.
13. The aforesaid clause of section 3 of the General Clauses Act defines the rule in the following words:- "Rule shall mean rule made in exercise of the powers conferred by an enactment and shall include regulation made as a rule under as enactment."
14. In the Supreme Court Ruling referred to above it was held that the `Karachi allocation rules 1953' which may have been made in reference to Fundamental Rule 45 which is itself the statutory rule are not statutory rules and at the most may be described as internal regulations for the guidance of the Estate Office and no vested right can arise out of such rules. In the above-cited Lahore case it was held that the departmental instructions issued by authority not competent to make rules have no force of law and can confer no authority to impose penalty. The provision of the General Clauses Act defining the rule and the various judicial pronouncements of superior Courts including those referred to by the learned counsel for the appellant leave no room for any doubt that rule- making power of the Government is necessarily a conferment of an enactment of appropriate Legislature and that the rules named by the Government which are devoid of such statutory sanction behind them cannot be prescribed as statutory rules and at the most may be treated as executive orders or instructions having no force of law which neither create any vested right in nor impose any disqualification of penalty upon any person. Thus as regards the general proposition of law, advanced by the learned counsel for the appellant that the power to make statutory rules is always derived from a statue we are in complete agreement with him. From the reading of the Revenue Officers Rules it becomes quite clear that in so far as they pertain to Tehsildar and Naib- Tehsildar these are almost stereotype copy of the West Pakistan Tehsildari and Naib---Tehsildari Service Rules, 1962, framed by the Governor West Pakistan in exercise of the powers conferred on him by virtue of clause (2) of Article 178, of the Constitution of Republic of Pakistan, 1962. But the Azad Jammu & Kashmir Constitution Act, 1970, which was in force at the time of framing the Revenue Officers Rules contains no such provision akin to clause (2) of Article 178 of the aforementioned Constitution of Pakistan under which the Governor was delegated the power to frame rule regarding the matters pertaining to services. Thus when the Revenue Officers Rules are considered in the light of the above legal position the inescapable conclusion to which one comes to is this that the same are not statutory rules for the simple reason that they lacked behind them the necessary statutory sanction as no law has been shown to us under which the Government was given the authority to make service rules such as Revenue Officers Rules. But the question which fails for determination in this case is as to whether the Government had authority to prescribe educational qualifications for eligibility for appointment to the post of Naib-Tehsildar and if the answer to this question is found to be in affirmative then whether the provision made in the Revenue Officers Rules regarding the educational qualification required to be possessed by a candidate for the post of Naib-Tehsildar has any force in law? The answer to the above question is found in rule 18 of Kashmir Service Rules Volume 11 which were in force at the relevant time. The said rule 18 of Kashmir Service Rules reads as follow:- Rule 18: "No person shall be eligible for appointment to any service, class, category, grade or any post borne on the cadre thereof unless he:
(i) possesses such qualifications and has passed such special tests as may be prescribed in that behalf by Government; or
(ii) Possesses such qualifications as may be considered by Government to be equivalent to the said special qualifications or special tests."
15. The provision of the Kashmir Service Rules reproduced above makes it quite clear that the Government did possess the power to prescribe qualifications for eligibility for an appointment to a service or a post and thus if the rule 7(i) of the Revenue Officers Rules lays down that no person shall be appointed to the post of Naib-Tehildar unless he has passed the Intermediate Examination or Higher Secondary School Examination from recognized University or Board of Education it cannot be argued that such a ,p rule is ultra vires of the Government and an appointment made in disregard of the aforesaid rule of a person not possessing the required educational qualifications does not suffer from an infirmity rendering it unlawful. The provision in the Revenue Officers Rules prescribing the minimum educational qualification to be eligible for appointment to the post of Naib-Tehsildar may not, legally speaking, be called statutory rule but at the same time there is nothing in law to deprive it of a status of an order or instruction of the Government which was within its competency to make or issue under the Kashmir Service Rules. The compliance of the above-stated rule was thus incumbent upon the appointing authority and the appointment made in desregard of the said order or instruction of the Government was devoid of any legal sanctity and as such unlawful.
16. For the reasons stated above we cannot agree to the contention of the learned counsel for the appellant that it was not legal necessity for the appellant to have passed the Intermediate Examination before his appoint--ment as Naib-Tehsildar and that the appointing authority had acted illegally and without lawful authority in terminating his services on the ground of his being only Matriculate and thus not fulfilling the requisite condition with regard to the educational qualifications prescribed by the Government for eligibility for appointment to the post of Naib- Tehsildar.
17. There is also another aspect of the case which comes to one's mind while considering the validity or otherwise of the order impugned in this appeal. As already indicated somewhere earlier, the provisions of rule 18 of Kashmir Service Rules which were in force at the relevant time prohibited the appointment of any person to any service, category, grade or post borne on the cadre unless he possessed such qualifications as were prescribed in that behalf by the Government. In other words it means that the Commissioner who was an Appointing Authority in cases of Naib- Tehsildars was only empowered to make appointment of a person as Naib-Tehsildar who fulfilled the qualifications laid down by the Government to be eligible for appoint--ment to the post of Naib-Tehsildar and since the appellant obviously lacked the requisite qualification the Commissioner suffered from the inherent lack of jurisdiction to appoint the appellant as Naib- Tehsildar. This being the legal position it would not be wrong to say that the appointment of the appel--lant from the very beginning was unauthorised having been made in contraven--tion of the service rules in vogue at the relevant time as the appellant did not satisfy the requisite pre- condition for appointment to the post of Naib-Tehsildar in the Revenue Department.
18. Needless to say that under an appointment which is ab initio void and ultra vires no service rights are acquired by a person so appointed which are otherwise vested under the relevant service law or rules in the Government servants lawfully and regularly appointed. The appellant, therefore, has no cause of making any legitimate complaint if his services are terminated by a competent authority not as a result of any punishment for misconduct but only by way of rectifying an error found to have been somehow committed while making his initial recruitment to the service and which under the law could not be authorised, ignored or condoned by the Appointing Authority.
19. This Tribunal has already taken a view in Appeal No. 91 of 1979 entitled Mir Abdul Qayum v. Azad Government that the Government is fully competent to prescribe qualifications for eligibility to appointment to a post in a service and as such a person who has passed the Intermediate Examination of some recognized University or Board of Education is only eligible to an appointment to the post of Naib-Tehsildar and that the services of the probationer can be terminated without show-cause notice as principle of natural justice contained in Maxim `Audi alteram partem' is not applicable in such a case.
20. After having disposed of the above legal aspects of the case we may not find refer and discuss the point on which the learned counsel for the appellant laid much stress during the course of his arguments which is to the effect that a view to determining the eligibility or otherwise of the appellant for appointment to the post of Naib-Tehsildar the right and opportune time to look into his educational qualification was when his appointment as such was being considered but once his appointment had taken place by an order of the competent authority and he had also served on the post for a considerable period it was rightly improper and unjustifiable to deprive him of the status in the service as such a drastic action tantamount to playing with the career of the young man which this Tribunal being a Court of appeal against the order of the competent authority should not approve and allow the mischief caused by it to continue. He has, therefore, emphatically urged that the impugned order be set aside on this reason alone even if it does not suffer from any legal flaw.
21. We are extremely sorry to express our inability to accede to this submission of the learned counsel for the appellant which apparently contains in it an element of raising some sympathy in favour of the appellant on humanitarian and emotional grounds but such emotional arguments do not carry any weight in the eyes of law because the matters in controversy between the parties are required to be decided by the Courts of law or judicial Tribunals strictly in accordance with law applicable in a particular case and considerations extraneous to law do not influence a decision an a case. If such emotional arguments such as advanced by the learned counsel for the appellant are allowed to prevail then there is also other side of the picture which perhaps has remained obscure from the vision of the learned counsel for the appellant while making his above submission. It needs no mention that in these days there is no dearth of highly educated persons who may be aspiring for securing the appointments to such important posts under the Government as that of Naib-Tehsildars. Thus when the matter is looked into is this context it can be safety said that an appointment of an unqualified person as Naib-Tehsildar bad the effect of depriving a deserving citizen of Azad Kashmir of his vested and legitimate right to an appointment to such a post. The appointment of a person fulfilling all the required qualifications for appoint-- ment to the post of Naib-Tehsildar by selection made on the basis of merits would have been not only in the interest of the efficiency of Department concerned but would have also not given any cause of grievance to the Association of Patwarian and Girdawars to press their demands before the Government for undoing the appointments of persons who were ineligible to be appointed as Naib-Tehsildars.
22. The net result of the above discussion is that the appointment of the appellant from the very beginning was unauthorised and unlawful having been made in contravention of the service rules in force at the relevant time inas--much as the appellant suffered from the inherent disqualification by reason of not possessing the minimum educational qualifications required for appointment to the post of Naib-Tehsildar; that the appointment of the appellant in the Revenue Department was on probation for a period of two years and as such order of termination of his services within the period of his probation does not suffer from an infirmity for want of show-cause notice in, that it was quite in accordance with the terms and conditions of his service as contained in section 10 of the Civil Servant Act and that the appellant is not an aggrieved civil servant within the meaning of section 4 of the Service Tribunal Act as no terms and conditions of his service have been adversely affected by the order impugned in this appeal.
23. For the foregoing reasons we do not find any fault with the impugned order justifying interference in the same and consequently this appeal is dismissed leaving the parties to bear their own costs.
The parties be informed of this order.
KHAWAJA GHULAM QADIR (MEMBER).-I agree.