SARDAR MUHAMMAD SAJAWAL KHAN (CHAIRMAN)---This is an appeal by Abdullah, Store Assistant against the order dated 21-4-1992 of Secretary, Health Department by which the departmental appeal brought by him before the Secretary Health was rejected and the order of his removal dated 23-5-3991 made by Naib-Commanding Officer, Azad Kashmir C.M.H.
Muzaffarabad under the direction of Director, Health Department was maintained. The appellant has impleaded Azad Government of the State of Jammu and Kashmir through its Chief Secretary, Secretary, Health Department, Director, Health Department and the Commanding Officer, Azad Kashmir C.M.H., Muzaffarabad as respondents for seeking his relief against them.
2. In the memo of his appeal, it is stated by the appellant that he was employed as Store, Assistant in Azad Kashmir C.M.H., Muzaffarabad and the order of his appointment was duly endorsed by the Director, Health Department. The limitation of age was also relaxed in favour of the appellant under the recommendations of Director, Health Department. The appellant has been performing his duties satisfactorily and in recognition of his good services, he was granted a commendation certificate by the Commanding Officer, C.M.H. But after his one year and nine months service in the Health Department, the appellant was illegally removed out of service on the basis of his earlier retirement order made by the Armed Services Board. The appellant felt himself aggrieved by, the aforesaid order of his removal from service and brought an appeal before the Secretary, Health Department but it was not successful and hence the present appeal. The appellant has assailed the impugned orders on the following grounds:--
(i) that he was illegally removed out of service on the basis of his retirement order issued by the Armed Services Board despite of the fact that he was not dismissed out from the service of the Board to disqualify the appellant from future employment. In fact the appellant was compulsorily retired by the Armed Services Board and his retirement under compulsion should not have been based to justify his removal from service and hence the impugned order of his removal and the order passed on his appeal are not maintainable in law;
(ii) that a show-cause notice was necessary to be issued to the appellant for removing him out of service but no show-cause notice was issued and the appellant was condemned unheard.
3. By a short order of this Tribunal dated 30-6-1992, the above-noted appeal was admitted for regular hearing and the respondents were asked to submit their objections against the present appeal. On behalf of respondents, the following preliminary objections were raised by the counsel for respondents:--
(a) that the initial recruitment of the appellant was illegally made without following the relevant departmental rules and as such the appellant had no locus standi to stay in the service of the Health Department;
(b) that the appellant's departmental appeal before Secretary, Health Department was barred by limitation and it was incompetent also for having been made by passing next higher Authority viz. Director of Health Department;
(c) that the appellant kept the fact of his compulsory retirement from Armed Services Board a secret from the appointing Authority and had thus disqualified himself from future employment
(d) that the appellant was on probation and as such the service of show---cause notice upon him before making the impugned order of his removal from service was not an obligation of the Department.
4. We have considered the arguments as were addressed by the learned counsel of each party. It is argued on behalf of the learned counsel for the appellant that the compulsory retirement of the appellant from the service of Armed Services Board was not supplying a legal ground to the Department so as to deprive the appellant from future employment. The (sic) deviation of appointing Authority in not following the departmental rules before making the appointment of the appellant is also no good ground to justify the removal of the appellant from his service. Under the principle of natural justice, the issue of show-cause notice to the appellant was necessary but he was condemned unheard. According to the learned counsel for the appellant, the impugned orders of removal of the appellant from service are unjust and improper and are required to be vacated.
5. We have examined the record placed on the file and we are in agreement with the learned counsel for the appellant that the compulsory retirement ordered by the Armed Services Board in case of the appellant was not providing a legal impediment against the appellant to his re- employment. We also agree with this conclusion of the learned counsel for the appellant that failing of appointing Authority to follow the relevant rules of procedure while making the appointment of the appellant was also not a good ground to base his removal from service of the Health Department. The impugned order of removal from service against the appellant was made by a Naib-Commanding Officer, Azad Kashmir C.M.H., Muzaffarabad on 30th May, 1991 and the appellant had brought his appeal before the Secretary, Health Department on 21-7-1991. There is nothing on the file to rebut this presumption that the appellant had not actually filed his appeal before Secretary, Health Department on 21-7-1991. A period of two months from the date of impugned order of his removal was available to the appellant for filing his appeal before a competent Departmental Authority and his Departmental Appeal is, therefore, held to have been brought before the competent Authority quite in time. Since the impugned order of removal from service was made under the directions of Director of Health Department, therefore, the appellant had not committed any mistake in filing his appeal direct before Secretary, Health Department.
However, the success of the present appeal depends upon resolving this question whether a show- cause notice was necessary to be issued to the appellant before the Tribunal impugned order of his removal from service. The learned counsel for the "appellant" relies upon an unreported judgment of this Tribunal dated 16-4-1992 made in Service Appeal No. 595 entitled Muhammad Rashid v. Azad Government and others and argues that show-cause notice was necessary to be issued to the appellant before removing him out of service. But here we do not feel ourselves inclined to accept the view of the. Learned counsel for the appellant because the facts of Service Appeal No. 595 decided by this Tribunal on 16-4-1992 are quite different to the facts of the present appeal. In fact, the law laid down by the Hon'ble Supreme Court in Service Appeal No.18/90 entitled Syed Zahoor Hussain Kazami v. Manzoor Hussain decided on 16-10-1990 is very clear on the point at issue. In the service appeal referred to, the Honourable Supreme Court held as under:-- "Next question which needs to be resolved is that whether in case of a probationer, it is necessary to assign any reason under section 10(1)(i) of the Civil Servants Act. It has been clearly laid down m the aforesaid provision that service of all the probationers is terminable during probation or extended period without any notice. It implies that it is neither necessary to issue any notice nor to assign any cause for taking action under the aforesaid provision. The power of termination of service of a probationer and if the competent Authority exercises the said power, the relevant order cannot be challenged on the ground that the powers were exercised without any sufficient cause.
The matter came up for consideration in this Court in an unreported case entitled Brig. Ali Muhammad Chudhary (Retd.) v. Azdd Government of the State of Jammu and Kashmir (Civil Appeal No. 14 of 1988, decided on 17-1-1990), wherein it was held that the service of a probationer is terminable without any show-cause notice."
6. In view of the relevant substantive law and the judgment of Hon'ble Supreme Court as above, the legal position in the instant case is that the appellant being a probationer in the service of the Health Department was not entitled to the issue of show-cause notice and as such his removal from service was neither illegal nor improper. The Health Department was fully competent to terminate his service without issuing any show-cause notice or assigning any reason.
7. In view of para. 6 of this judgment, the appeal fails and the same is hereby dismissed. Nor order as to the costs.