' KH. ABDUS SAMAD (MEMBER).-The appellant has preferred this appeal against Government order No, 1310-13/Assembly/81, dated 15th October, 1981 under section 4 of Azad Jammu and Kashmir Service Tribunals Act, 1975.
2. By virtue of this appeal, the appellant prays for setting aside the above Government order and restoration to his original post of Editor of Debates and all other emoluments attached to the post.
3. Briefly the facts of leading to this appeal are that after being approved by the P.S.C. For the post of Information Officer, the appellant was appointed as Editor of Debates in the Legislative Assembly by the respondent No, 2, vide Government Order issued under No, Admin./I 5662-66/ 75, dated 27th August, 1975. This order Annexure 'A' is on the file.
' This post of Editor of Debates in the Assembly Secretariat of the Punjab was in N.P.S. 17, therefore, on the basis of accepted principle of parity, and at the request of appellant, the pay scale of the post of Editor of Debates Azad Kashmir Assembly was revised and placed in N.P.S. 17 vide Government order No, 1330-41/Assembly/75, dated 3rd May, 1976 and a copy of the said order was endorsed to the appellant and is shown as Annexure.
' On 19th October, 1976 a post of Reporter Assembly was created in N.P.S. 16 in the Assembly Secretariat vide Order issued under No, 2990-95/ Assembly/76, dated for a period of 6 months, w. e. f. 24th August, 1976 vide Order No, 3023-20/Assembly/76, dated 2nd October, 1976 the appellant was reverted by the respondent No, 1 with retrospective effect from 24th August, 1976 to the post of Reporter. Muhammad Gulzaman respondent No, 3 (proceeded ex parte) on the basis of Order No, 3026-28, dated 21st October, 1976 was appointed Editor of Debates in N.P.S. 17 with a special pay of Rs, 60, w,e,f, 24th August, 1976. Later on it transpired that an application was obtained from the said Muhammad Gulzaman on 24th August, 1976 and was allowed to take over as Editor of Debates without any intimation to the incumbent of the post, i,e, the appellant. The appellant put in review petition, on 26th October, 1976 and requested for restoration to the post of Editor of Debates. The copy of the review petition is Annexure 'E' and the same was rejected vide Order No, 1310-10/81, dated 15th October, 1981.
4. The appellant in his grounds of appeal has challenged the impugned order and prays for restoration to the post of Editor of Debates. The main grounds of appeal are that the appellant was reduced in rank without any show-cause notice/charge-sheet/explanation and also provided no opportunity of being heard. Being qualified for the post of Editor of Debates, the appellant has been reverted, and respondent No, 3 who previously resigned from Assembly has been re-appointed purely on political grounds. The appellant was appointed as Editor of Debates by the Government and the Speaker was not competent to revert the appellant. The impugned order is retrospective whereby the appellant was drawing his salary in Grade-17 for August and September, 1976. On the basis of the grounds of appeal, the appellant prays for setting aside of the impugned order. And restoration to the post of Editor of Debates in N.P.S. 17.
5. The Additional Advocate-General counsel for the respondent has put in written statement with a specific detail about the promotion of the appellant to Grade-17. He has asserted that the appellant was never promoted to Grade-17.
6. The appellant's counsel in his replication has asserted and relied on the grounds as given in the memorandum of his appeal.
7. The appellant has relied on the grounds of appeal, his representation to Speaker Legislative Assembly, and of review petition submitted before Chief Executive.
8. The appellant has examined witness Muhammad Iqbal, Accountant Legislative Assembly, Abdul Baqi Reporter, Zulfiqar Ahmed, Superintendent Audit Office, Muzaffarabad. The appellant has himself appeared as a witness in the Tribunal and we shall refer to his evidence in the following column. His above witnesses have deposed about official record produced by them in this Tribunal.
The respondent has not examined any witness and as such we are left with the evidence of appellant only.
9. The appellant while making statement as a. Witness in the Tribunal deposed that he passed his M.A. In Journalism in 1974. Public Service Commission invited applications for the post of Information Officers, The appellant appeared in the examination and was declared successful vide Government Order P.A., he was appointed as Editor of Debates for Legislative Assembly A.K. He performed his duties in this capacity till 21st October, 1976. The post of Editor of Debates in Punjab Assembly carries Grade-17 N.P.S. With special pay and on that basis the appellant was promoted to this grade and special pay vide Government Order P.A./1 where he kept on drawing his salary in Grade-17 with Rs, 60 as special pay for a period of 6 months. According to order Exh. D.A./2 the appellant was reverted to Grade-16 without any legal justification, show-cause notice or any charge-sheet vide order Exh. D.A /2, the appellant came to know that a post in Grade-16 has been created w. e. f. 19th October. 1976 and on that very date vide Exh. P.C./4 the respondent No, 3 was adjusted as Reporter Assembly by the respondent No,
1. The said respondent had prior to this second appointment resigned from the Legislative Assembly from the post of Reporter and had participated in the Elections for a seat as Member Assembly. He actually contested Elections from his Tehsil Kundalshahi and was defeated. During those days an important political personality (Name of the said person not mentioned by the appellant) was considering the appellant) as an obstacle in his political life and career and, so, he conspired to remove the appellant from his way and got him appointed as Reporter Assembly in Grade-17, against the Service rules prevailing during that period. This conspiracy resulted in reversion of the appellant and his rights have been ignored by the Authorities and he prays for justice.
10. In cross-examination the appellant has admitted that he received his salary with special pay in Grade-17 N.P.S. Against the post of Chief Reporter Assembly on the principle of parity with Province of Punjab (Pakistan). He has denied a charge-sheet inquiry or show-cause notice issued by respondent No,
1. His contention about the salary and pay as drawn by him in Grade-17 stands fully proved by the evidence of Zulfiqar Ahmed Superintendent, Audit Office, Muzaffarabad. The representation submitted to Speaker (respondent No, 1) by the appellant on 26th October, 1976 (Annexure 'F') needs reference for clarification with regard to the position of the appellant : {{URDU TEXT}} ri,k1 1-Lrc.) {{URDU TEXT}} ' From the above representation it is admitted fact that appellant's initial appointment was made by the Government in Grade-16 (Annexure 'A') vide (Annexure T'), this post was upgraded on 3rd May, 1976 by the respondent No, 1 and vide Annexure 'C' this post of Reporter in Grade-17 was created for a period of 6 months, w,e,f, 25th August, 1976 by respondent No,
1. On 21st October, 1976 respondent No, 1 issued the impugned order vide Annexure 'D' and the said order was to take effect from 24th August, 1976. On this crucial date 24th August, 1976 the respondent No, 3 was all of a sudden brought in as Editor of Debates in Grade-17 with special pay of Rs, 60 by orders of respondent No, I (Annexure 'E').
11. Now, respondent No, 3 re-appeared on the stage is novel and surprising for the reasons that formalities regarding appointment have been completely ignored by respondent No,
1. The simple application (Exh. P.C./1), dated 24th August, 1976 submitted by the respondent No, 3 to the Secretary Assembly is reproduced below : {{URDU TEXT}} ' and the nature of this very application has been very much embarrassing for the Honourable Speaker who has himself recorded a note "How we can adjust him." The respondent No, 3 has mentioned his previous meritorious services in the Assembly and his resignation due to unavoidable domestic affairs. On this very date i,e, 24th August, 1976 the respondent No, 3 submitted his joining report to the Secretary Assembly. The note of learned Speaker i,e, "How we can adjust him" was somehow or other ignored by the said authority and respondent No, 3 was verbally asked to put in his joining report Exh. P.C.
2.
12. The appellant was reverted to the post of Reporter in Grade-16 with protection of his previous pay vide order No, Exh. DA/2. This order was given effect from 24th August, 1976. This position is clear to the extent that on 24th August, 1976 respondent No, 3 was brought in as Editor of Debates in Grade-17 with special pay Rs, 60 per mensem and appellant was reverted to Grade-16 as Reporter in the Legislative Assembly by respondent No, 1
13. The counsel for the parties have argued this appeal and we have gone through the record. We have considered this appeal as a whole and it is admitted fact that the appellant was recruited as Editor of the Debates by the Government on the recommendations of P.S.C. In Grade-16 N.P.S. The appellant submitted his case to the Respondent No, 1 for upgrading the post of Editor in Grade-17 with special pay of Rs, 60 P.M. On the principle of parity of Azad Kashmir Government Civil Servants with Punjab Government (Pakistan). The Government was pleased to upgrade this post.
Unfortunately Assistant Secretary Assembly submitted an adverse report to the Deputy Secretary Assembly wherein it was alleged that appellant has been careless and irresponsible regarding the editing of the proceedings of the Assembly and has wasted a huge amount effecting the total performance of this Institution. However, he being unexperienced his removal from Service was not proper and it was proposed as follows :- {{URDU TEXT}} 444 ' The said mischievous proposal was by the Deputy Secretary with the following note :- ' and the Honourable Speaker was pleased to order creation of post of Reporter for a period of 6 months and after some time the appellant was adjusted in Information Department of A. K.
Government. This was not the end of story and the record very clearly speaks of the fact the Khalil Ahmed Qureshi the then Secretary Assembly fully pointed out the legal position involved in this case and he recommended pay protection in Grade-17 in favour of the appellant. The said note of Secretary Assembly, dated 20th October, 1976 was approved by the Speaker Assembly. The appointment of respondent No, 3 and removal of appellant was not at all appreciated by the Secretary Assembly and his opinion regarding the reversion of appellant without charge-sheet and explanation speaks of the legal issues involved in this appeal. On 13th December, 1976 the re-entry of respondent No, 3 was approved by the Assembly members and law Minister who happened to be members of Committee with Speaker as Chairman in those days (page 21 of file Exh. P.C. Shows that A.J.K. P.S.C. Has not approved respondent No, 3 and the department has been asked to explain his re-entry into Service).
' The learned counsel for appellant has relied on many citations wherein reduction in rank, emoluments, status and position have been discussed at length.
15. His main contention relates to show-cause notice before, taking action against the appellant.
We do not hesitate to agree with this legal objection. The initial recruitment order issued by respondent-Government vide Annexure 'A' on 27th August, 1975 clarified the position that the appellant was appointed as Editor of Debates on the basis of recommendation of P.S.C. No condition whatsoever was attached with this order and we treat this appointment as permanent.
The Assistant Secretary Assembly had initiated adverse report against the appellant and it was necessary to issue show-cause notice to the appellant. Since the loss of huge amount was also alleged against appellant. We are of the opinion that a proper inquiry was necessary before taking any action against the appellant.
' Again the appellant's counsel has contended that the impugned order is mala fide and to appreciate the same fact he has referred to page 10 of Exh. P.B. This note has been submitted by the appellant to Deputy Secretary Assembly on 11th October, 1975. We reproduce this note for convenience and reference :- {{URDU TEXT}} {{URDU TEXT}} ' Later on the appellant was accused of carelessness regarding the printing of debates and proceedings of Assembly. This note shows that a person known as Editor of "Weekly Haqqeeqat" was entrusted this job of printing the debates and proceedings of the Assembly respondent No, 1 whereas it was the duty and the job of appellant. The appellant proved imprudent to challenge the order of respondent No, 1 for bringing in the said Editor for this job. This application by the appellant proved a storm in the Assembly.
16. This protest made by the appellant leads us to conclude that his reversion was not made according to rules. During his tenure as Editor of Debates no complaint was made against him.
Respondent No, 3 re-appeared on the stage and the storm stated against the appellant.
' Respondent No, 3 was candidate for a seat in Legislative Assembly from Authmuqam Tehsil M'abad and he submitted his nomination papers and these papers were verified on 12th March, 1975 and was defeated in the said election. It is admitted by the learned counsel for the respondents Nos, 1 and 2 that the respondent No, 3 happened to be ex-Government servant who had resigned and contested the election for a seat in Legislative Assembly. After his defeat he approached the respondent No, I for his blessings and was actually brought in as Editor of Debates in Grade-17 against all rules governing such appointments. His qualification, age, resignation, role as a politician and consequent defeat in Elections were necessary factors to be considered before issuing orders of his re-appointment and reverting the real incumbent of the post i,e, appellant.
As discussed above we are of the opinion that the reversion of the appellant is against the principle of natural justice and the impugned orders B amount to unheard condemnation, is void ab initio and without any legal effect. As such this impugned order cannot be sustained. Accepting this appear we set aside the impugned order, dated 15th October, 1981 and 26th October, 1981 and direct the respondent to restore the appellant to his original substantive post of Editor of Debates.
This order shall be ex parte to extent of respondent No, 3 and with no order as to costs.
' The parties be informed accordingly.
' SARDAR MUHAMMAD ASHRAF KHAN (CHAIRMAN).-I agree with the learned Member that orders impugned in this appeal being unlawful are liable to be set aside. The appellant was appointed to the post-of Editor of Debates in the Azad Jammu and Kashmir Legislative Assembly in Grade-16 by the Government, the respondent No, 2 vide its order, dated 27th August, 1975 (copy Annexure `A').
Subsequently the said post was upgraded and placed in National Pay Scale No, 17 with Special pay of Rs, 60 per month attached therewith vide Government order, dated 3rd January, 1976 (copy Annexure `B') and the appellant continued to work on the same till 21st October, 1976, when he was removed therefrom retrospectively w,e,f, 24th August, 1976 and re-appointed against the post of Reporter Assembly in Grade-16, created temporarily for the period of six months and in his place Muhammad Gul Zaman respondent No, 3 who had earlier resigned as Reporter Assembly was appointed w. e. f. 24th August, 1976 by the respondent No, 1 vide his orders, dated 21st October, 1976 (copy Annexures 'D and E'). The review petition of the appellant against the aforesaid order was also dismissed on 26th October, 1981. Hence this appeal.
The impugned order removing the appellant from the post of Editor of Debates in Legislative Assembly and reappointing him to lower grade post of Reporter Assembly would show that the same was passed on the grounds that the appellant had been lax, negligent and careless in the discharge of his official duties which means that the impugned order had been made by way of imposition of penalty on the appellant on the allegation of C his being inefficient. He was neither informed about the allegations against him nor given any opportunity of being heard. Such an arbitrary and unjust order was not only unwarranted by the relevant rules but also offended against the well-known principle of natural justice embodied in maxim audi alteram partem. The appellant having been appointed to the post of Editor of Debates in the Legislative Assembly of Azad Jammu and Kashmir Government by the competent authority, could not be deprived of his appointment on the allegations of his being negligent and careless in the performance of official duties without having recourse to the disciplinary action against him under Azad Jammu and Kashmir Civil Servant (Efficiency and Discipline) Rules, 1975 which were applicable by virtue of the provisions of section 12 of the Azad Jammu and Kashmir Legislative Assembly Secretariat (Recruitment, Terms and Conditions) Act, 1976 and without acquainting him with the charges against him and affording him reasonable opportunity of meeting the same. But all the above legal prerequisites were totally disregarded and ignored by the respondent No, 1 who straightaway made the order of the removal of the appellant from the post of the Editor of Debates which he was substantively holding and gave him new appointment which was not only lower in grade but was also temporary in nature. I fail to see how this could be done under the relevant service rule applicable to the appellant who was incumbent of the permanent post. Such an act on the part of the respondent No, 1 does not find any legal sanction behind it and smacks of mala fide.
' I, find no force in the contention raised by the respondent in their written statement in defence of the impugned order that the appellant was never promoted or appointed to Grade-17 after the upgradation of the post of Editor of Debates in the Legislative Assembly from National Pay Scale Nos, 16 to 17. In my view, no separate or independent order of promotion or appointment of the appellant to the Grade-17 was required to be made consequent upon the raising of the status of the said post and the appellant had become entitled to the said grade on the upgradation of the post again which he held his appointment. When the grade of an existing post is raised, the incumbent of it also automatically moves to such an higher grade without any formal order of his promotion or appointment to it.
For the foregoing reasons, the order impugned in this appeal is set aside. The appellant shall still be deemed to be holding the post on Editor of Debates in Azad Jammu and Kashmir Legislative Assembly and be entitled to the emoluments of the said post with all back benefits.