' The petition is addressed by the petitioner against the order of his removal from service as District Food Controller, Kotli, on the ground of illegality, discrimination and mala fides, and to issue direction to the Government to allow the petitioner to continue his service. The impugned order was passed on November 1 and served on the petitioner on November 10, 1990.
2. The claim of the petitioner is that he was appointed Storage Officer in the Food Department on ad hoc basis, in scale B-16, on June 29, 1986. In the examination conducted by the Public Service Commission for the post of Storage Officer, the petitioner could not secure the top position and the candidate who secured the first position, was recommended for his appointment against the said post. The petitioner was then adjusted against the post of District Food Controller in the same scale, on ad hoc basis, on June 2, 1988. He continued to serve on that post as the period of his appointment, i,e, six months, as prescribed under the rules, was extended from time to time till June 2, 1990. The Director, Food Department initiated recommendation in favour of the petitioner in consideration of his satisfactory performance of duty and requested the Secretary, Food to recommend his case for exemption from the restriction of his appearance before the Public Service Commission. The Secretary, Food made a recommendation to the Principal Secretary to the Chief Executive. This recommendation was further endorsed by the Principal Secretary to the Chief Executive on June 7. It was suggested that the provisions of the Public Service Commission Rules, 1978, may be relaxed to regularise the appointment of the petitioner. The recommendation was approved by the then Chief Executive on June 9. When the file was routed back for issuing order, the Under-Secretary, Services and General Administration put up a detailed note pointing out irregularity in the aforesaid approval of the Chief Executive and submitted the file for reconsideration of the order. The Additional Chief Secretary, to whom the note was addressed, recorded his agreement and moved the Chief Secretary to invite attention of the Chief Executive to the alleged irregularity. The Chief Secretary accordingly requested the Chief Executive to recall the order of June 9 in exercise of his review powers. The Chief Executive concurred and accordingly recalled the approval of recommendation of June 9. He also ordered removal of the petitioner from service forthwith. The order of the Chief Executive was accordingly issued on November 1. This order is assailed in the present petition.
3. Mr. M. Nisar Mirza, the learned counsel for the petitioner raised the following points:
(1) that by virtue of approval of recommendation of the Food Department and the Principal Secretary on June 9, the Chief Executive exempted the petitioner from the restriction of appearing in examination before the Public Service Commission, as such regularised his appointment. As the petitioner acquired a vested right to serve in the civil service of the State, he could not be removed from service in derogation to the provisions of law. Moreover, the petitioner was entitled to be given a show-cause notice, as such an opportunity of hearing before his removal from service;
(ii) that even if the service of the petitioner was not construed to have been regularised by virtue of the order of Chief Executive on June 9, even then he was entitled to a show-cause notice as contemplated under section 10(3) of the Civil Servants Act; and
(iii) that the impugned order was mala fide and discriminatory.
' The learned counsel for the opposite side controverted the aforesaid objections by supporting the impugned order.
4. Civil services in Azad Jammu and Kashmir are governed by the provisions of section 49 of the Azad Jammu and Kashmir Interim Constitution Act, 1974. The law framed in the light of the provisions of the Constitution consists of the Azad Jammu and Kashmir Civil Servants Act, 1976 and the Rules framed thereunder known as the Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977; the Azad Jammu and Kashmir Public Service Commission Act, 1986 and the Rules framed thereunder called as the Azad Jammu and Kashmir Public Service Commission (Function) Rules.
5. The provisions of the Civil Servants Act (hereinafter referred to as the Act) do not lay down the scheme of initial recruitment to a civil post. The relevant provisions are made in the Civil Servants (Appointment and Conditions of Service) Rules (hereinafter to be referred as the Service Rules).
The Civil Servants Act, again, does not conceive a scheme of recruitment, but at the same time, the scheme of recruitment of civil servants is contemplated in the Public Service Commission (Function) rules (hereinafter referred to as the Function Rules).
6. Rules 16 and 23 of the Service Rules read with rules 6 and 7 of the Function Rules, provide a scheme of initial recruitment and exemption of certain A posts for the recruitment of which no examination or test was to be conducted by. The Public Service Commission, as the Government was invested with discretion to make initial recruitment or appointment by promotion or transfer, as the case may be.
7. It is undenied that all recruitments to the posts in Grade-16 and above are to be made by the appointing authority on the basis of examination or test conducted by the Public Service Commission. Rule 16 of the Service Rules provided that initial recruitment to the posts in Grade-16 and above except those which, under the Function Rules, do not fall within the purview of the Commission and which were specified to be filled without reference to the Commission, was to be made on the basis of examination and test conducted by the Commission. So, there were two categories of posts which were to be filled by the appointing authority without reference to the Commission. The first category was of such posts which were below Grade-16. The other category was of the posts which were specified to be filled without reference to the Commission. The power of specifying such posts in consideration of public interest, was contemplated under Rule 7 of the Function Rules. This suggests that no other civil post of Grade-16 and above was to be filled without reference to the Commission.
8. The other aspect of recruitment to civil service relates to ad hoc appointments to posts in Grade-16 and above. The relevant rule providing the scheme of ad hoc appointments was rule 23 of the Service Rules. It laid down that whenever a post in Grade-16 and above was desired to be filled the appointing authority shall forward a requisition to the selection authority immediately.
After forwarding the requisition to the selection authority (Public Service Commission), the appointing authority, if considered it necessary in the public interest to fill the post on ad hoc basis, was empowered to do so for a period not exceeding six months pending nomination of a candidate by the selection authority. The restrictions laid down in sub-rule (2) were also to be fulfilled while making an ad hoc appointment. It further provided that ad hoc appointment shall not confer any right on the person so appointed in the matter of regular appointment to the same post nor the service will count towards seniority in the grade. This suggests that an ad hoc appointment was controlled by the restrictions, viz.:
(i) A requisition must be forwarded by the appointing authority to the selection authority prior to making the ad hoc appointment;
(ii) the ad hoc appointment could not exceed beyond the period of six months;
(iii) the ad hoc appointment was terminable on nomination of a candidate by the selection authority; and
(iv) the ad hoc appointment did not confer any right on the person so appointed, in the matter of regular appointment to the same post nor the service was likely to be counted towards seniority in the grade.
9. Under the proviso of rule 6 of the Function Rules, when an ad hoc appointment was made by the appointing authority pending recommendation of the selection authority, the initial period of six months could be extended for a further period of six months with the approval of the Commission.
In present case, it is noticed that the ad hoc appointment of the petitioner was made in derogation to the provisions of rule 23 of the Service Rules. The parties were in agreement that no requisition was forwarded to the Public Service Commission by the appointing authority prior to the ad hoc appointment of the petitioner. It is regrettable that even by this time, the requisition has not been forwarded to the Public Service Commission. In view of the scheme of law listed above, an ad hoc appointment for whatever period, as in the present case, does not confer any right on the petitioner nor the petitioner, by virtue of prescription, can claim to I continue in service.
10. It is not the case of the petitioner that he was entitled to exemption from appearing in examination or test to be conducted by the Public Service Commission, to hold the post in question, by virtue of the provisions of Rule 7 of the Function Rules. This is rightly so as the Government at no stage, specified the post of District Food Controller to be filled without reference to the Commissions. Thus, the provisions of the rules which exempted a particular post to be filled without reference to the Commission were not attracted in the present case.
11. It is evident from the recommendation of the Principal Secretary to the Chief Executive that he moved the Chief Executive to relax the restrictions which necessitated appearance of the petitioner in the examination conducted by the Commission for his appointment against the said post. The Chief Executive approved the recommendation. But the fact remains that under the provisions of rule 7 of the Function Rules, the Government was empowered to specify the post, in consideration of public interest, to be filled without reference to the Commission, and not to exempt a candidate or relax the restriction in reference to a candidate. There was obviously a difference between specifying a post to be filled without reference to the Commission and to exempt a person from appearance in examination or test conducted by the Public Service Commission. In case it is accepted, as recommended by the Principal Secretary, that the Chief Executive may exempt the petitioner from his appearance in the examination conducted by the Public Service Commission instead of specifying the post to be filled without reference to the Commission, it would tantamount to putting the cart before the horse. Such a scheme was unknown to the rules of service. Therefore, the approval of the Chief Executive of June 9 was not strictly in compliance with the rules applicable to civil service. Be that as it may, the fact remains that the petitioner claims to continue in service by acquisition of a valid right by virtue of the order of the Chief Executive of June
9. Therefore, next we have to examine the scope of approval of recommendation by the Chief Executive vide his order of June 9 to ensure as to whether that order vested a right in the petitioner to continue to hold the post as a permanent civil servant.
12. As a general rule, the authority which makes an order, is empowered to review, recall or amend its order in exercise of its inherent jurisdiction. Such power was deemed necessary for the proper discharge of its functions. An exception to the rule was available in such cases where, in execution of such order, a decisive step had been taken by giving it a definite effect by implementation, as in such case the authority was not left with locus poenitentiae. Therefore, in order to provide answer to the objection raised by the learned counsel for the petitioner that on approval of the Chief Executive, of the recommendation of the Food Department, on June 9, the petitioner acquired a valid right to continue in service, and as such, unless he was given an opportunity of hearing before passing of the impugned order, the impugned order was violative of the rule of Audi Alteram Partem, we advert to examine the nature of the order of June 9. No doubt that when a person is vested with a right or he acquired a valid right, he cannot be deprived of that right unless he was duly given an opportunity of hearing. This is so, as no one is to be condemned unheard. The rule of natural justice of Audi Alteram Partem was undoubtedly a salutary right, but in order to avail such right, it was incumbent upon the claimant of such right to prove that he was invested with a valid right. In present case, a right could have accrued in favour of the petitioner provided, in the light of approval of the Chief Executive of June 9, the order was issued and given due effect. Unless the order was issued and given effect, it cannot be said that the right of service was invested in the petitioner. The provisions of section 2l of the General Clauses Act, which empower an authority to amend, vary or rescind an order, were enforceable in the present case. It is undenied that by the time the Government issued the impugned order, the previous order of June 9 was not implemented. In Shahbaz's case, PLD 1956 Federal Court 46, an order for release of the prisoner, by grant of remission, was issued with the direction that the detenu should be released on August 14, 1954 (the Independence Day). By a subsequent order, that order was cancelled on August 13, i,e, a day before its implementation, with the result that the prisoner was not released on the Independence Day. The order of August 13 was challenged in a writ petition before Lahore High Court on the ground that on issuance of the order, it was given due effect, as such it could not be recalled by the Government one day before the date fixed for the release of the prisoner. On dismissal of the petition, the proposition was resolved by the Federal Court by repelling the objection of the prisoner in the following manner: "Similarly it does seem to us necessary in this case to decide whether section 21 of the General Clauses Act applies to orders passed under section 401, Criminal P.C. For apart from that provision, Government must, in the nature of things, possess power to recall its own orders. In fact existence of such power is necessary in the case of all authorities empowered to pass orders under a statute or regulation and that is apparently the reason why in order to give finality to judicial orders provisions greatly restricting the use of this power had to be introduced in the Civil and Criminal Procedure Codes. Wherever there is no such restriction imposed on Government there is no reason to deny them the power of correcting even the errors of judgments. In several cases this power of correction is necessary for the proper discharge of their functions. In the Nagpur decision relied upon for the appellant it was not held that Government does not possess power to modify or cancel its earlier orders. What was objected to there was the exercise of that power after the date on which the prisoner was due to be released under the original order. But in the present case the order of cancellation was passed before the date of release and in the order under appeal it has been made clear by the High Court that a locus poenitentiae will be left only if the order has not been carried into effect. Mr. Mahmud Ali's contention that it is not appropriate to speak of a locus poenitentiae in the case of Government is not supported by the very decision on which he relies, where it was observed that there might be a locus poenitentiae in such a case, but that it was at an end when the order of cancellation was passed in that case. Locus poenitentiae in law refers to the power of receding till a decisive step is taken. If a decisive step is taken other considerations would arise, but if that step is yet to be taken, we see no reason to restrict the power to modify or cancel."
' The dictum of the Federal Court recorded in Shahbaz's case was followed in Dr. Mahboob Rabbani's case PLD 1963 (W.P.) Lah.
53. In that cast, Professor Mahboob Rabbani was granted leave preparatory to retirement. Order to that effect was issued and leave was availed. Thereafter the leave was cancelled with a direction to the professor to attend the classes. On his superannuation, the petitioner applied for adjustment of his leave but his request was turned down in view of cancellation of his leave by a subsequent order of the Government. Mr. Justice Sardar Muhammad Iqbal, who spoke for the Court, following the dictum of the Federal Court in Shahbaz's case, held that the power under section 21 of the General Clauses Act to cancel an order could be exercised successfully when the order had not already come into operation and given due effect. In that case, as the order was implemented and given effect by availing the leave, the plea of passing the impugned order in exercise of power under section 21 of the General Clauses Act was turned down. Thus, the rule of law applicable to the proposition is that the authority passing the order was competent to amend, vary, recall or rescind its order provided it was not given effect or implemented. In present case, it is undenied that the approval of the recommendation accorded by the Chief Executive on June 9 was still in the process of issuing the order when it was recalled by a subsequent order of the Chief Executive.
Thus, respondent No, 1 was not deprived of the jurisdiction to recall the previous order in the shape of the impugned order.
13. Mr. M. Nisar Mirza, the learned counsel for the petitioner argued that under section 10(3) of the Act, it was imperative for the respondent, in the alternative, to issue thirty days' notice to the petitioner before terminating his services. The answer to the objection is covered by the provisions of section 10. It deals with termination of service. Subsection (1) provides that the service of a civil servant may be terminated without notice if the appointment is made on ad hoc basis liable to termination on the appointment of a person, on the recommendation of the selection authority, on the appointment of such person. These provisions indicate that when a person was serving already on ad hoc basis subject to termination on appointment of a person on the recommendation of the Public Service Commission, the moment the Commission recommended a person for his appointment against the post, the service of the ad hoc appointee was liable to termination without show-cause notice. Next, under the provisions of subsection (3), the service of a civil servant in temporary employment or appointed on ad hoc basis was liable to termination on thirty days notice or pay in lieu thereof. According to the learned counsel, these provisions were enforceable in the case of the petitioner. Therefore, when the Public Service Commission had not recommended any person for appointment on the post occupied by the petitioner, in that case, the petitioner was entitled to thirty days notice or pay in lieu thereof. It is undenied that with effect from June last, when the period of six months of the last extension expired, no further extension was given to the petitioner. He continued without extension of further period when on November 1, his services were terminated. Rule 23(2) of the Service Rules postulates that the appointing authority may, if it considers necessary in the public interest, fill a post on ad hoc basis for a period not exceeding six months. This suggests that the appointing authority was empowered to make an ad hoc appointment for whatever period but within the limit of six months. As no order for extension of any period within six months was made by the Government, it shall be deemed that the order of removal from service impliedly further extended the period of appointment of the petitioner till November 1, 1990. The spirit of law contemplated under section 10(3) of the Act seems to be complied with as he availed five months instead of thirty days.
14. The emphasis of the next argument advanced by the learned counsel for the petitioner rested on the provisions of section 22 of the Act which enlarged the jurisdiction of the Government, as saving clause, to deal with the case of any civil servant in such manner as may appear to it to be just and equitable. These provisions were also subject to exception prescribed therein. On the premises of the provisions of section 22, it is a condition precedent that the case of a civil servant was liable to be dealt with as an exception to the general rules provided the Government was satisfied that it was just and equitable to do so in that case. The terms "just" and "equitable" are defined in Black's Law Dictionary as:- "Just" meaning 'conforming to or consonant with what is legal or lawful; lawful; right; in accordance with law and justice.'
"Equitable" meaning 'just; conformable to the principles of justice and right. Existing in equity, available or sustainable in equity, or upon the rules and principles of equity.'
May be that the Government was the best judge to hold that the case of a civil servant was subject to exception from the general rule, on the rule of justice and equity, but the fact remains that once the discretion vested in the Government was exercised in that manner, it was subject to scrutiny of the Court to find out its propriety. In present case, nothing else except satisfactory performance of duty by the petitioner during the period of his four years service, was made the basis to give him the benefit of section 22 of the Act. This would suggest that a routine performance of duty was considered an exception though ordinarily every civil servant holding civil post was enjoined to perform his duties satisfactorily. Even if the contention is accepted as valid to hold that the order of the Chief Executive of June 9 was passed in exercise of power under section 22 of the Act, even in that case, in order to avail the benefit, the impugned order is subject to the test of the powers available to the Government to recall, modify, amend or rescind its orders for proper performance of its functions, as a general rule. As already observed elsewhere that the order of June 9 not having been passed strictly in compliance with the rules, was recalled in exercise of powers of the authority. Therefore, the order of June 9 was unsustainable.
15. The learned counsel for the petitioner also argued that it was incumbent upon the Chief Secretary to issue the order of regularisation of the service of the petitioner in the light of the direction or sanction of the Chief Executive. Failure on his part to issue the order was mala fide. It was further explained that the file remained with the Senior Minister who happened to be father of respondent No,
2. This was also a mala fide act. To add to the allegation of mala fides, reference was made to an order of the Chief Executive made on the application of the father of the petitioner, as the case of the petitioner was exempted from the operation of the Cabinet decision whereby all orders passed by the previous Government after the general elections were declared unimplementable.
16. The afore-listed facts do not constitute mala fides as under the provisions of the Rules of Business, the Chief Secretary was under duty to bring to the notice of the Chief Executive an irregularity or illegality caused by his actions. It was enjoined upon the Chief Secretary to inform the Chief Executive of the consequences of his order passed on September 26 so as to give effect to the order of the Chief Executive passed on June 9. This is how a detailed note was made and ultimately when the matter was brought to the notice of the Chief Executive, he felt advised to recall the order of approval of the recommendation of the Food Department. To support the action of the Chief Secretary, reference may be made to the dictum of the Supreme Court recorded in Sardar Muhammad Abdul Qayyum Khan's case, PLD 1983 SC (AJ&K)
95. The relevant observation appears in para. 167 as: 'Before we finally wind up the case we would like to state that under the Government Act, 1970 the executive authority vested in the President and the President only was the repository of all the powers. However, under sub-rule (4) of rule 8 of the Azad Jammu and Kashmir Rules of Business, 1971, which deals with the general procedure for disposal of business, if an order was passed by the President in contravention of law or rules it was the duty of the next below officer to point it out to the President. Therefore, if a wrong order was passed by the respondent during that period and he had not been made conscious of it, as stipulated under sub-rule (4) of rule 8 of Rules of Business, 1971, by a subordinate officer, no charge against the respondent can sustain. The reason is very simple. The President, as we all know, is not expected to know law and the rules and that is why under the Rules of Business a heavy duty is cast upon the shoulders of the subordinate staff not to hesitate in pointing out to the President about the illegality or irregularity of an order made by him."
' In the light of the aforesaid observation, it would not be out of place to approve the remarks of the Under-Secretary, the Additional Chief Secretary and the Chief Secretary to seek review of the order of June 9.
17. The attribution of mala fides made to the Senior Minister is unsupported by record. Moreover, the order of appointment of respondent No, 2 is not placed on the file of this Court to enable the Court to find out as to whether that order was detrimental to the interests of the petitioner so as to constitute mala fides. Some of the authorities relied upon by the learned counsel for the petitioner in support of his arguments are not relevant to the proposition under consideration, as such they need not be reproduced here. The facts of Syed Altaf Hussain Shah's case decided by this Court are distinguishable as in that case the order of the Chief Executive was not recalled by the time the direction was issued by this Court. No other point was canvassed at the bar.
18. The hardship faced by the petitioner and scores of other youngmen who were removed from service on expiry of the period admissible to an ad hoc appointment, cannot escape the attention to hold that the current phenomena of ad hoc appointments in consideration of political services, has advanced insecurity, instability and inefficiency in the civil service, in addition to the element of corruption. The fact of the matter is that all ad hoc appointments are made out of favour, ignoring the merits of candidates. The Civil Service Rules are flouted and persons of east virtues are inducted in service which serves no purpose other than political opportunism. Such a scheme of recruitment to civil services has stopped the wheel of development and performance of proper functions of the civil administration. The phenomena of ad hoc appointments should immediately be replaced by lawful scheme of recruitment envisaged by the Service Rules to provide fair opportunities to all citizens, without discrimination and pick and choices. Sooner the authorities advert to the principle of rule of law, the better it would be in the interest of justice and welfare of public-at-large and the State.
' The petitioner, who has suffered loss of his appointment for no fault of his, deserves consideration in the matter of relaxation of his age-limit to enable him to appear in the examination conducted by the Public Service Commission to fill the post.
' There is no merit in the petition. It is, therefore, dismissed. No order as to costs. 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.