MUHAMMAD IRSHAD KHAN (MEMBER).-The relevant background of the present appeal is that the appellant, then a practising lawyer at Peshawar, was appointed as a District and Sessions Judge, Gilgit, with effect from 26-2-1973, initially on ad hoc basis, vide Kashmir Affairs Division's Office Order dated 2-3-1973, which was subsequently superseded by another Office Order dated 12-9- 1979 whereby the appellant's appoint--ment was made on regular basis with effect from the 26th February, 1973, and until further orders. Thereafter, as per Establishment Division's Notification dated 7-2-1978, he was transferred from Gilgit and posted as an Officer on Special Duty in the Establishment Division. Later on, in pursuance of the Notification dated the 10th July, 1978, read with another Notification dated the 2nd August, 1978, he was granted leave from 11th July, 1978, to 12th March, 1979, and on expiry of the said leave, stood removed from service with effect from the 13th March, 1979, under the order of the competent authority made in exercise of the powers conferred under section 12-A of the Civil Servants Act, 1973 (hereinafter referred to as the Act). The appellant submitted a review petition against the order of his removal from service, which was rejected as conveyed to him vide Establishment Division's latter dated 12-5-1980.
He then preferred the instant appeal.
2. We have heard the learned counsel for the parties and perused the record of the case placed before us by the Departmental Representative. The learned counsel for the appellant mainly contended that the appoint--ment of the appellant was made on regular basis and in accordance with the law in force, at the relevant time, therefore, the provision of section 12-A of the Act could not be competently invoked for removing him from service. It was further contended that the appellant was not served with any show-cause notice nor was he informed of any reason for or justification of the impugned order, which is based neither on the service record of the appellant nor is substantiated by any other tangible piece of evidence or record. The learned counsel, therefore, urged that the impugned order is null and void being without jurisdiction, arbitrary and mala fide.
3. On the other hand, the learned counsel for the respondent--/Department raised a preliminary objection contending that the instant appeal was not maintainable as it was hit by section 12-A of the Act, which is an extraordinary provision of law. We asked the learned counsel to show any basis for his contention as evidently the removal of a Civil Servant even under section 12-A of the Act relates to the terms and conditions of his service, and section 12-A nowhere states anything which might debar this Tribunal from hearing an appeal against such an order nor the jurisdiction of the Tribunal is barred in such matters by any statutory provision either specifically or impliedly. A reference may rather very pertinently be made to section 5 of the Corporation Employees (Special Powers) Ordinance, whereby specific provision was made, conferring jurisdiction on this Tribunal to bear appeal against the orders made under section 3 of the said Ordinance, which is quite identical to section 12-A of the Act. The learned counsel, however, failed to point out any basis for his contention except saying that it was his stand. We have no hesitation in saying that his totally unfounded stand is simply fallacious and is accordingly repelled.
4. On merits, the learned counsel for the respondent was contented merely on submitting that the impugned order is unexceptionable because the appellant's appointment as District and Sessions Judge, Gilgit, was irregular having been made without consultation of the Federal Public Service Commission which was a constitutional requirement at that time. We do not find any substance in this contention too. For, we failed to see any provision in the erstwhile Constitu--tion or even in any other Statute then in force providing for consultation of the Federal Public Service Commission in the matter of appointment of District and Sessions Judge, Gillgit, or for that matter, in any other appointment. No doubt, it has, been revealed from the record that initially it was intended to fill up the post of the District and Sessions Judge, Gilgit, on the basis of the recommendations of the Federal Public Service Commission and, in fact, the Commission through advertisement had already invited applications for the post. Subsequently, however, on the suggestion of the Minister for Interior and Northern Areas it was proved by the President that instead of making the appointment trough the Federal Public Service Commission, the services of the appellant, who was then holding appointment on ad hoc basis, be regularized. In our view, this was competently done by the then President as he was legally competent to make the appointment as well as to lay down a manner therefore.
5. We will now address ourselves to the question whether or not the instants appeal has any merit.
It is a known fact that Administration of the Northern Area is a peculiar entity and, though amenable to the authority and control of the President of Pakistan, it does not function as a Government Department. Rather, the Civil Service is staffed and regulated thereunder arrangements, which are not legally enforceable at the instance of the employees. In other words, Government servants appointed under the arrangements existing in Northern Areas are not entitled to any guarantees and safeguards under the Constitution or any Statute or the Rules having the force of law. That being so, the appellant could only hold office during the pleasure of the President. This position coupled with the object and provision of section 12-A of the Act, leads us to an irresistible conclusion that the appellant's appointment was subject to the power and authority of the President to remove him from B service in public interest and the only power that this Tribunal has in the matter is to declare that the impugned order is unlawful but this can be done by us only if the order is found to have been passed by an authority not authorised by law to pass it, or the order is one which could not justifiably be passed on the basis of material which was taken into consideration for passing the same, or tie order is mala fide i.e. That it purported to have been passed under the cloak of a power which could not have been exercised. Viewing the matter from this angle, we have noticed that while considering the case of the appellant the competent authority i.e. The President was genuinely and justifiably satisfied that the public interest demanded the appellant's removal from service, inter alia on the ground that it was brought to his notice that the presence of the appellant in the Northern Areas was considered to be undesirable by the Ministry of Kashmir Affairs as well as the Martial Law Administrator, Zone-E. In our view therefore, there was genuinely sufficient and fully valid justification for passing the impugned order.
It may be added here that the learned counsel for the appellant could not also persuade us to hold that any notice to the appellant for showing cause against the impugned order or furnishing aim any reason or justifi--cation therefore was necessary. Indeed a bare perusal of section 12-A of the Act quite clearly shows that the requirements of show-cause notice and furnishing the reasons stand excluded by the plain language and words used in the enactment. Therefore, the impugned order is not open to exception on this account too. It may, therefore, be safely concluded that the impugned order was bona fide passed by the President in due exercise of the lawful powers legally vested in him. The impugned order, therefore, does not call for any interference.
6. It was lastly argued by the learned counsel for the appellant that the cases of all the persons removed under section 12-A of the Act were referred to the Federal Public Service Commission for assessm ent of their suitability of the posts held by them before their removal. However, the case of the appellant was not referred to the Federal Public Service Commission. In the submission of the learned counsel this discriminatory and erroneous action of not referring the case of the appellant to the Fede--r.1 Public Service Commission indicates mala fide which vitiates the impugned order.
After a careful consideration we found this contention of the learned counsel to be devoid of any substance. A perusal of the rele--vant file placed before us by the Department, reveals that after the action against the persons appointed during the period 1-1-1972 to 5-7-1977, was completed under section 12-A of the Act, a policy decision was taken by the competent authority that cases of all such persons appointed by direct recruitment through lateral entry examination to Foreign Affairs Group, Secretariat Group Office Management Group, District Management Group and Police Group should be referred to the Federal Public Service Commission and on the recommendations of the Commission their re--instatement on the same posts or appointment to any other post will be considered by the Government. It was, however, simultaneously decided that he cases of the appointment by direct recruitment to the posts other than mentioned above shall not be referred to the Federal Public Service Commission and the orders passed thereon under section' 12-A of the Act shall be implemented forthwith. There was, therefore, no occasion for referring the case of the appellant to the Federal Public Service Commis--sion, rather the order removing him from service was to be implemented forthwith without any reference to the Federal Public Service Commission.
Even otherwise, the appellant, quite obviously, had no vested right to claim a reference of his case to the Federal Public Service Commission. It is therefore, held that the impugned order was rightly implemented without any reference to the Federal Public Service Commission.
7. In view of the foregoing, we do not find any merit in the appeal and dismiss it accordingly with no order as to costs.
8. Parties to be informed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.