' SARDAR SAID MUHAMMAD KHAN, C.J.---This appeal has been directed against the order of the High Court dated 27-2-1998, whereby the writ petition filed by Manzoor Ahmad, respondent No,1, was accepted and the order of Ombudsman dated 7-1-1996 which was affirmed on appeal by the President of the Azad Jammu and Kashmir vide his order dated 6-12-1996, were quashed as having been passed without lawful authority.
2. The brief facts of the case are that Manzoor Ahmad, respondent No,1, was appointed as Forest Guard vide order dated 24-6-1995 subject to the conditions including that of approval of the Departmental Selection Committee. His appointment was subsequently confirmed by the Departmental Selection Committee on 18-8-1995 Abdul Khalil, appellant, filed an application before the Ombudsman on 7-7-1995 alleging that he had passed the interview and test etc. And has been performing functions as Forest Guard without any remuneration but instead of his appointment on a post which fell vacant by the retirement of one Feroze, the post was filled in by the appointment of Manzoor Ahmad, respondent, he maintained that he had preferential right to be appointed as Forest Guard in the Department. After sending for the comments from the Department, the Ombudsman directed the concerned authority to appoint Abdul Khalil, appellant herein, on the post which fell vacant as a result of retirement of Feroze, Forest Guard, in place of Manzoor Ahmad, respondent. The representation filed by Manzoor Ahmad, respondent, against the order of Ombudsman dated 7-1-1996 was also dismissed by the President of Azad Jammu and Kashmir vide his order dated 26-11-1996. Thereafter, Manzoor Ahmad filed a writ petition in the High Court which was accepted vide impugned order holding that the order of Ombudsman was passed without giving an opportunity of hearing to Manzoor Ahmad and, thus, was unsustainable. It is against the aforesaid order of the High Court that the present appeal has been preferred.
3. We have heard the arguments and perused the file. Raja Muhammad Hanif Khan, Advocate, the learned counsel for the appellant, has argued that the appointment of Manzoor Ahmad, respondent, was made without complying with the provisions of the relevant rules of appointment, because the post was not advertised as was required under rules. Thus, his appointment was ab initio void. According to the learned counsel it was not necessary that the Ombudsman should have heard Manzoor Ahmad, respondent, before passing the impugned order. The learned counsel has argued that an order which is a initio void does not confer any right on a party and, thus, there is no question of hearing such a party. The learned counsel has further submitted that the President was necessary party in the writ petition but he was not so impleaded and, therefore, the writ was not properly constituted and should have been dismissed on this sole ground. The learned counsel for the appellant has argued that the bar of jurisdiction envisaged under section 9(2) of the Act known as the Establishment of the Office of Ombudsman Act is not attracted because appellant was not a public servant at the relevant time. He has cited following authorities in support of his contentions:-- ' In case reported as Raja Muhammad Ashraf Khan Kayani v. Azad Government 1998 PLC (C.S.) 110, it was observed that the point of non- implement of necessary party can be raised at any time even if the same was not raised in the Courts below, in the appeal or in the concise statement filed in this Court.
' In case reported as Azad Jammu and Kashmir Government v. Javed Iqbal Khawaja 1996 PLC (C.S.) 155, it was observed that the appointment of a civil servant on a post without complying the relevant rules was illegal and was not sustainable.
' In case reported as Azad Jammu and Kashmir Government v. Muhammad Yunus Tahir 1994 CLC 2339, it was held that even in cases of ad hoc appointment it is necessary that rule 23 of the Civil Servants (Appointment and Conditions of Service) Rules, 1977, is complied with under which one of the conditions is that before filling in a vacancy, the same should be advertised as envisaged in the aforesaid rules.
' In case reported as Muhammad Rashid v. Azad Jammu and Kashmir Government (PLD 1987 SC (AJ&K) 60), a distinction has been drawn between the 'void' and 'voidable' orders. It was observed that if an order is found to be ab initio void, the conduct of hearing of the affected party is not attracted and in such a case it cannot be said that the principle of audi alteram partem has been violated.
4. Mr. Ghulam Mustafa Mughal, Advocate, the learned counsel for respondent No,1, has contended that in the instant case, the appointment of the respondent was subsequently approved by the Departmental Selection Committee. The learned counsel has argued that the order of the approval by the Departmental Selection Committee has not been challenged and, thus, the appellant was not entitled to any relief on the basis of initial order dated 15-8-1995, whereby the respondent was initially appointed. He has further argued that under the provisions of the Interim Constitution Act, the President of Azad Jammu and Kashmir cannot be impleaded as a party in a civil matter and, thus, the proposition that the authority which passes an order which is challenged should be impleaded in the writ jurisdiction as party is not attracted in the present case, especially so when the Government has been impleaded as a party in the matter. The learned counsel has submitted that in view of the comments filed by the department, it is crystal clear that it is not a case of maladministration and in any case the Ombudsman had no jurisdiction in such matters. The learned counsel has argued that if the appellant had any grievance against the appointment of respondent, he should have moved proper forum through appropriate means and not sought his remedy from the Ombudsman who had no jurisdiction in the matter. The learned counsel has argued that while passing the impugned order, the Ombudsman had not heard Manzoor Ahmad, respondent, but all the same directed that Abdul Khalil, appellant, herein, should be appointed in place of Manzoor Ahmad, respondent herein. Obviously, Manzoor Ahmad who was duly appointed against a vacant post should have been heard and the departmental comments sent for by the Ombudsman are not sufficient to dispense with his right of hearing. The learned counsel has also argued that the alleged interview which the appellant claims to have given was valid only for six months which had expired much earlier as is evident from the comments filed by the department.
Thus, the learned counsel has submitted that the impugned judgment of the High Court is not open to any exception. The learned counsel has further submitted that there is a difference between the order which is ab initio void and an order which is illegal. The learned counsel has argued that the contention of the learned counsel for the appellant that appointment order of the respondent was ab initio void is incorrect because the appointing authority was competent to make the appointment of the respondent and the said order was also subsequently approved by the Departmental Selection Committee. The learned counsel for the respondent contended that the Ombudsman has no jurisdiction in service matters. The learned counsel has cited following authorities in support of his contentions: ' In a case reported as Karachi Port Trust v. Altaf Ahmad (1996 SCMR 1205), it was held that as under the Rules known as Government Servants (Efficiency and Discipline) Rules, 1973, a notice to the concerned probationer civil servant was necessary. Hence the petition for leave to appeal filed by the Karachi Port Trust against the order of the High Court of Sindh was dismissed.
' In case reported as Malik Khalid Mahmood v. Abdul Majeed Butt (1997 MLD 2921) it was observed that this is well-settled doctrine that once a valuable right vests in a person, it cannot be taken from him without giving him proper hearing.
' In case reported as National Bank of Pakistan, Karachi v. Wafaqi Mohtasib (Ombudsman) and another (PLD 1992 Kar. 339) it has been held that a complaint by a public servant or functionary with regard to his grievance regarding his service is not cognizable by the Ombudsman. Identical view has been expressed in case reported as Zaheer Ahmed and another v. The Inspector-General of Police and another (PLD 1994 AJK 16).
5. We have given due consideration to the arguments raised at the Bar. As has already been stated, the High Court has accepted the writ petition on the ground that the order against the respondent was passed by the Ombudsman without giving an opportunity to him. The contention of the learned counsel for the appellant that as before the appointment of Manzoor Ahmad, respondent, as Forest Guard, the post was not advertised as envisaged under the relevant rules, his appointment order is ab initio void is not sustainable, because there is vast difference between an order which is ab initio void and one which is violative of some rules. In the instant case, it cannot be said that the concerned authority had no jurisdiction to appoint Manzoor Ahmad, respondent, as Forest Guard specially so when it was also approved by the concerned Selection Committee.
Assuming for the sake of argument that the post in question was not advertised, the fact remains that the order may be illegal but the same cannot be regarded to be ab initio void. Therefore, the authorities submitted by the learned counsel for the appellant that an order, which is ab initio void, does not confer a right of hearing on the concerned person, are not attracted in the instant case, especially so when the Ombudsman had not set aside the appointment of Manzoor Ahmad, respondent, on the ,ground that same was violative of the relevant rules. A perusal of the order passed by the Ombudsman reveals that he merely observed that the appellant, herein, should be appointed on the post on which Manzoor Ahmad, respondent, was appointed because the appellant, herein, had been waiting for his appointment since quite some time. There is no mention in the order passed by the Ombudsman or in the order of the President that the appointment of Manzoor Ahmad was violative of rules due to the non-advertisement of the vacancy which was filled in by his appointment.
6. Similarly, the contention of the learned counsel for the appellant that the President should have been impleaded as a party is not sustainable because the President cannot be impleaded as a party under the Interim Constitution Act in such like matters. The Government has been impleaded as a party, and thus, could take the appropriate stand on behalf of the President. Even otherwise, the basic order in the matter was passed by the Ombudsman who has been impleaded as a respondent in the writ petition.
7. There is yet another aspect of the matter. In the writ petition filed in the High Court it has been specifically contended that Ombudsman has no jurisdiction in service matters as envisaged under subsection (2) of section 9 of the Act. However, this point was not resolved by the High Court. We have also heard the learned counsel for the parties on the point so to decide the same ourselves.
The relevant section of the said Act is reproduced as under:-- "(9) Jurisdiction, functions and powers of the Mohtasib.---(1)
(2) Notwithstanding anything contained in subsection (1), the Mohtasib shall not accept for investigation any complaint by or on behalf of a public servant or functionary concerning any matter relating to the Agency in which he is, or has been, working in respect of any personal grievance relating to his service therein.
' A bare reading of the abovementioned provision shows that a public servant or functionary who is or has been serving in an agency, is debarred from making a complaint against the agency in which he has been serving as such. It has been the case of the respondent that he has preferential right of appointment as a Forest Guard, because he had earlier been performing duties in the department in some other capacity. Obviously, the case is fully covered by restrictions imposed by the aforesaid provision and thus even otherwise the order passed by the Ombudsman was ab initio void.
' The upshot of the above discussion is that finding no force in this appeal, it is hereby dismissed.