BASHARAT AHMAD SHAIKH, J.---This appeal arises out of a judgment of the High Court whereby a writ petition filed by respondent Gul Afsar was accepted and he was restored to service as a Coolie in the Public Works Department (Highways) in place of appellant Rashid Hussain who had been appointed after the removal of Gul Afsar. Rashid Hussain has now filed this appeal with leave of the Court.
2. Executive Engineer P.W.D. Roads Division Muzaffarabad appointed respondent Gul Afsar as Coolie in B.P.S.1 on 20th May, 1996. The post fell vacant due to the retirement of one Feroze Din. The order of appointment stated that the appointment had been made on the recommendation of the Selection Committee. The same officer issued an order on 13th August, 1996 by which he terminated the services of as many as eighteen Coolies, including the respondent, by recording the following reason:-- "In this Division following appointments were made against the post of Coolies after the announcement of the Election Schedule, namely, between 2nd May, 1996 to 30th June, 1996. In pursuance of Notification No,546774/Works, dated 13th August, 1996 and decision taken in the Cabinet meeting held on 1st August, 1996 the appointments mentioned below are cancelled."
3. Gul Afsar challenged this order, after exhausting departmental remedies, by filing appeal before the Service Tribunal which was dismissed on the ground that he could not file appeal before the Service Tribunal because he had ceased to be a civil servant. Thereafter, he filed a writ petition in the High Court. The High Court has accepted the writ petition on the ground that the Cabinet had no authority to terminate the services of a Collie and also because Gul Afsar was not given any notice before removal from service. Consequently the order by which Gul Afsar's services were terminated has been set aside and he has been restored to service. Appellant Rashid Hussain had meanwhile been appointed as a Coolie and was impleaded as a respondent in the writ petition. He has filed appeal in this Court by leave granted to him.
4. Sardar Rafique Mahmood Khan, the learned counsel for the appellant, vehemently contended that the order of appointment of Gul Afsar as a Collie was made in violation .)f the standing order of the Government whereby a ban was imposed for fresh appointments during the campaign for the elections to the Legislative Assembly and that the Cabinet subsequently decided to terminate the illegal appointments because, as submitted by him, people holding high position in the Government had taken undue advantage in order to attract votes by making illegal appointments of undeserving persons. The learned counsel submitted that since the ban on fresh appointments was imposed by the Government it was within the powers of the Cabinet to rectify the violations of the Government order. He contended that the Cabinet itself had not terminated the services of respondent Gul Afsar but it was the appointing authority, namely, Executive Engineer who had passed the order of termination.
5. The arguments of the learned counsel for the appellant were vehemently opposed by Syed Nazir Hussain Shah Kazmi, the learned counsel for respondent Gul Afsar. He stated that it is not on the record that any ban had been imposed by the Government on fresh appointments during election campaign. He contended that in fact no such ban had been imposed. He also contended that in any case the respondent was entitled to a show-cause notice which was not given to him.
6. The record shows that the order of termination was passed by the Executive Engineer, the appointing authority, but the said order was issued in pursuance of a Government Notification as well as a decision of the Cabinet. It is significant that it is not stated in the order of termination passed by the Executive Engineer that the appointments cancelled by him had been made in violation of any ban. Even otherwise there is nothing on the record to indicate that any ban had in fact been imposed by the Government to prohibit fresh appointments during election campaign.
Thus, the argument that the appointment of respondent Gul Afsar was illegal and it was cancelled for that reason has no force. The order of the Executive Engineer does not disclose any reason for termination of the eighteen Coolies except that the Cabinet had taken the aforesaid decision.
According to service laws if a person has been appointed to Government service he cannot be removed except in accordance with law. No authority, including the Cabinet, can pass an order of termination arbitrarily without valid reason or without having recourse to legal procedures. The order of Executive Engineer reproduced above contains a recital that termination orders were being issued because the appointments had been made during the election schedule. No law or rule has been brought to our notice that appointments during election schedule are illegal. If the Government had imposed a ban on appointments after the announcement of election schedule we would have examined the legality or otherwise of that ban, but no such situation exists in the present case.
7. It was argued by the learned counsel for the appellant Rashid Hussain that the appointment of Gul Afsar was made without inviting applications and without holding test and interview which was an illegality. He contended that the High Court should have declined to reinstate the respondent in these circumstances. This point was taken in the writ petition and was argued before the High Court and is duly mentioned in para. 3 of the judgment under appeal but has been left undecided by the High Court. It has been duly raised and argued before us. Therefore, we have examined this aspect of the case.
8. We find that the appointment order of respondent Gul Afsar contained a recital that he was being appointed on the recommendation of the Selection Committee. Rashid Hussain did state in the written statement filed by him in the High Court that the post against which Gul Afsar was appointed was not advertised and no test or interview was held but he did not file any affidavit in support of his assertion. In absence of an affidavit we have to presume that it is correctly stated in the appointment order of Gul Afsar that he had been appointed on the recommendation of the Selection Committee. However, the allegation that the post was not advertised has to be accepted as correct. It was stated in para. 2 of the written statement filed by the respondents in the High Court that the post of Coolie was not advertised when Gul Afsar was appointed. It was pointed out that it was a violation of rule 17 of the Civil Servants (Terms and Conditions of Service) Rules, 1997. In the replication filed by Gul Afsar this fact was not denied and it was instead stated that "the appointment had been made in accordance with law with approval of the Selection Committee." It was further stated that Gul Afsar had been appointed against the vacancy caused by the retirement of his father after test and interview. From the above averments it is clear that it was not denied that the post was not advertised. The appointment order of Gul Afsar also does not state that the post was advertised although it is stated in it that the appointment was being made on the basis of recommendation of the Selection Committee. It may be pointed out that in the written statement filed, inter alia, by the Executive Engineer Highway Division the appointing authority in the case, it was stated that the post had not been advertised. It is mandatory requirement of rule 17 of the Azad Jammu and Kashmir Civil Servants (Terms and Conditions of Service) Rules, 1977 that all posts in grade one and above have to be advertised in the newspapers before making appointments. Since the post was not advertised, the recommendation of the Selection Committee is of no consequence. Therefore, the appointment of Gul Afsar was illegal.
9. It is well-settled principle of law that an illegal appointment cannot be restored in exercise of writ jurisdiction because one who comes to the Court to seek equity must come with clean hands. In a number of cases this Court declined to restore to office persons who were wrongly removed from service but their own appointments were illegal. The recent judgment on this point was delivered in Civil Appeal No,36 of 1999 titled Raja Abdul Razzaq v. Dil Khuram Abbasi and others decided on 7-4- 1999. We may reproduce the relevant portion below:-- "Consecaiently, we have reached the conclusion that appointments of the appellant as well as that of the respondent were made without the recommendations of the Selection Committee and without complying the other requirements of the rules on the subject. Thus, we are of the opinion that the judgment of the High Court, so far as the same pertains to the restoration of the service of the respondent is concerned, that is not sustainable. Therefore, the appeal is partly accepted and it is directed that the vacancy in question contested by the appellant and the respondent, Dil Khuram, would be deemed vacant and shall be filed in afresh by the concerned authority after complying with the requirements of the relevant rules." '
10.Upshot of the above discussion is that although his termination was not in accordance with law, respondent Gul Afsar has wrongly been restored to service because his appointment was illegal. The appeal is, therefore, partly accepted and the judgment of the High Court is vacated to the extent of restoration to service of Gul Afsar. The parties are left; to bear their own costs in this Court.