' BASHARAT AHM AD SHAIKH, J.---The respondents were recruited in the Prime. Minister Secretariat, Kashmir House, Islamabad as Telephone Operators on 28th December, 1991. They were subsequently confirmed on 28th December, 1992. One of them, Syed Irshad Hussain Shah, was later on promoted as Telephone Supervisor in B-11 on 27th February, 1993. They were non-State Subjects but the relevant rule was relaxed in view of the nature and importance of the job. The services of the respondents were terminated on 25th July, 1998. Thereupon, the respondents filed a -writ petition in the High Court which was accepted on the short ground that the order of removal from service of the respondents was passed without a show-cause notice. In view of this finding the points urged by the parties before the High Court were not decided. The Secretary to Prime Minister, who is the appointing authority, challenged jhe judgment of the High Court by filing a petition for leave to appeal which was granted.
2. The facts of the case are that a letter was written by the Military Secretary in the Prime Minister Secretariat to the Office Incharge Records of the Army requesting him to send some trained persons for appointment in the Prime Minister Secretariat as Telephone Operators. Interviews were held by the Commandant Singal Training Centre and names were recommended. The appointment order was issued on 28th December, 1991 appointing one NaibSubedar (Retd.)
Hassan Akhtar as Telephone Supervisor B-11 and the six respondents as Telephone Operators B-7. It was stated in the order of appointment that the appointments were being made on the recommendations of the Departmental Selection Committee. All the appointments were made for a probation period of one year. Subsequently Naib-Subedar Hassan Akhtar was relieved of his duties and in his place respondent Syed Irshad Hussain Shah was appointed as Telephone Supervisor. The termination order of the respondents, which was passed on 25th July, 1998, is to the following effect:-- ' ORDER ' The competent Authority has cancelled the appointments of the following persons made in the Prime Minister Secretariat in violation of the Azad Jammu and Kashmir Civil Servants Act, 1976 and Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977 being without inviting applications and without recommendations of the Selection Committee and has sanctioned that the posts under reference may be advertised:-- ' While accepting the writ petition, as mentioned above, on the ground of violation of the principle of 'audi alteram pertem' the High Court has written a detailed judgment on the application of the said rule and has also relied on a number of cases and held that it was rules of universal application that once an order is .Acted upon the same cannot be re-called without hearing the party whose interest is affected adversely. It was further observed that the rule of natural justice demands that before action is taken a right which has come to reside with a person, a show-cause notice is must.
3. It was vehemently contended by the learned counsel for the appellants, Ch. Muhammad Ibrahim Zia, that the learned Judge in the High Court fell in error in holding that principle of 'audi alteram partem' is applicable to the present case. He submitted that a void order or a patently illegal order does not create any right and if such an order is to be rescinded no show-cause notice is necessary. He contended that the respondents were appointed without advertisement of the posts and no meeting of Selection Committee was held. He stated that these are two mandatory conditions and an order passed in violation of these conditions is a void order and does not create any right. He submitted that the order of termination of the services of the respondents has been passed in obedience to the recent judgments of this Court in which strict compliance of the service laws has been ordered by this Court.
4. The record shows that the impugned order of the appointment of the respondents contained a recital that the appointment was being made on the basis of the recommendations of the relevant Departmental Selection Committee. The order of termination, however, states that they had been recruited without the advice of the Departmental Selection Committee and without advertising the posts. It was contended by the learned counsel for the appellants that in fact the appointment was made without recommendations of the Departmental Selection Committee which has not been admitted by the respondents. A Section Officer of the Prime Minister Secretariat filed an affidavit in the High Court in which he stated that the respondents were appointed subject to confirmation by the Selection Committee and that the recital in the appointment order that the appointment was made on the recommendation of the Selection Committee is factually incorrect. However, copy of the sanction of the appointing authority has not been brought on the record.
5. The statement that the posts were not advertised was not denied by the respondents and has been accepted as correct. They pleaded that the posts were purely technical and advertising them was not useful. Advertising a post is a provision contained in rule 17 of the Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977 which lays down as follows:-- "(17)Initial appointment to all posts in Grades 1 and above except those filled under rule 16, shall be made on the basis of examination or test to be held by the appropriate Committee or the Board, as the case may be, after advertisement of the vacancies in newspapers, or in the manner to be determined by the Government."
' In our view advertising a post is the basis on which merit system stands. If this condition is not complied with there can be no appointment on merit. Then people will be appointed without giving the Selection Committee/Board the opportunity for selecting the best person available for given posts and favoritism will become order of the day. This Court in Ch. Muhammad Fayyaz, Additional Custodian, Muzaffarabad and another v. Syed Arshad Gillani, Ex-Additional Custodian, Muzaffarabad etc. (PLJ 1999 SC (AJK) 99) has adopted the view of the Dacca High Court in Dr. A,N.M. Mahmood v. Syndicate of the University of Dacca (PLD 1970 Dacca 85) that implicit in the connotation of term "selection" is the concept of a choice between more than one candidate. It will be useful to reproduce the following portion of the judgment:-- "Syed Arshad Gillani, Sardar Muhammad Azeem Zia and Muhammad Bashir Khan based their permanency on the ground of their confirmation from the Selection Board which was, as noted above, neither supposed to advertise the post nor to hold any test or examination. Why then the relevant batch of persons was designated as 'Selection Board'? Concept of 'selection' is a choice between more than one candidate as was held by the Dacca High Court in Dr. A.N.M. Mahmood v.
Syndicate of the University of Dacca (PLD 1970 Dacca 85) in which S.M. Murshid, C J., speaking for the Court observed that implicit in the connotation of term 'selection' is the concept of choice between more than one candidate. In circumstances similar to the one in the present case it was observed as follows:-- ' In this connection it would be noticed that the so-called Selection Committee merely to award an ex post facto ratification to a resolution which had already been passed. There has been no advertisement for the post and, as a result thereof, no other candidate was , asked to appear before the Selection Committee except Dr. K.T. Hussain. It is clear that the Selection Committee was deprived of the opportunity of making a selection. I repeat that implicit in this connection of terms 'Selection' in the concept of a choice between the more than one candidate."
' In the situation mentioned above it was observed as follows:-- ' All these circumstances, in their totality, present as incontrovertible chain, which when the chronological list of events are taken altogether, lead to the conclusion, and no other, that the impugned appointment of Dr. K.T. Hussain exhibits a flagrant abuse of power and was in mala fide.It is well-settled that the Courts will intervene to prevent an abuse of power and, even when the act done is ostensibly in execution of a statutory power and within its letter, it would nevertheless be held not to come within the power if done otherwise than honestly and in the spirit of the enactment."
In our view, therefore, the condition of advertising a post contained in rule 17 reproduced above being of fundamental importance, must be held to be mandatory in nature with the result that if a post has not been advertised the appointment made against the post, even if based on the recommendation of a Selection Board, shall be void. In light of the above enunciation of law it is our view that the appointment order of the respondents did not create any right in them.
8. We agree with the learned counsel for the appellants that the learned Judge in the High Court did not lay down a correct law that the rule of 'audi alteram pertem' has universal application. It has been 'held by this Court in C Mst. Rehana Aziz v. Mst. Shakeela Ashraf and 2 others (1998 SCR 281) that if a person is not qualified to hold a post it is not necessary to hear him before rescinding his appointment. The learned Judge in the High Court has himself referred in the judgment under appeal the judgment of the Supreme Court of Pakistan reported as Federation of Pakistan through Secretary Ministry of Interior, Government of Pakistan, Islamabad v. The General Public (PLD 1988 SC 645) wherein it is known to the extent of certainty that if and when an opportunity is afforded, a person would take a certain position already known there is no point in affording opportunity of hearing. In the present case if the respondents had been given an opportunity of hearing their answer could have been that posts were not advertised, as has been admitted by them in their written statement. These two cases show that hearing was not necessary before termination of service of the respondents.
9. Equally important aspect of the case has been ignored by the learned Judge in the High Court that writ jurisdiction cannot be exercised to protect ill-gotten gain. This is a settled principle of law which has been consistently followed by this Court. Still if an authority is needed, then we may refer to Bashir Ahmad Khan v. Custodian and another (1992 SCR 149) and Ch. Muhammad Fayyaz case referred above.
10. The learned counsel for the respondents, Mr. Mujahid Hussain Naqvi, has cited Abdul Rashid v.
D.E.O. And another (1998 PLC (C.S.) 304), Malik Zafar Ali v. Inspector-General of Police (1995 SCR 234) and Abid Hussain Jafri and others v. Azad Government and others (1998 PLC (C.S.) 141) to support the sole point on which the judgment of the High Court based namely, right of hearing should have been given to the respondents before terminating their service. The three judgments lay laid down general principles on the point of 'audi alretarn partem' but the two judgments cited above, namely, Rehana Aziz case and the case of Federation of Pakistan-v. General Public, are cases which form exception to the general rule and that those have been found to be applicable to the present case.
11. For the foregoing reasons, we accept the appeal set aside the judgment of the High Court and order the dismissal of the writ petition filed by the respondents.