' BASHARAT AHMAD SHAIKH, J.---This appeal, by way of leave of the Court, has been directed against the judgment of the High Court, dated 6th May, 1999, whereby the writ petition filed by the respondent, herein, was accepted and his removal, from a service was held to be without any lawful authority.
2. The precise facts giving rise to the present appeal are that the respondent was initially inducted in the service of Azad Jammu and Kashmir as Tehsil Qazi on the recommendations of a Selection Committee in the year 1989. Later on he was inducted/appointed as Press and Publication Officer with the Prime Minister which was a discretionary post. Subsequently the said post was converted into a permanent post in B-18 and the respondent was appointed on the said post. A high powered committee was constituted by the Government to consider the legality of various appointments of civil servants as a result of judgment of this Court reported as Sh. Manzoor Ahmad v. Azad Government and another whereby it was held that section 22 of the Azad Jammu and Kashmir Civil Servants Act did not authorise the Government to appoint a person without recommendations of the Public Service Commission. Consequently on the recommendations of the aforesaid committee the services of the respondent were terminated as being violative of law. The respondent challenged the termination of his services filing a writ petition in the High Court on the ground, inter alia, that he was a permanent employee and for that reason his services could not be terminated without first serving him a show-cause notice. The High Court accepted his contention by holding that the respondent was condemned unheard and thus, the order of termination of his service was without lawful authority. It is the aforesaid judgment of the High Court which is the subject of the preset appeal.
3. Raja Sharif Kayani, the learned counsel for Azad Government of the State of Jammu and Kashmir and two others, submitted that the High Court fell in error in holding that respondent, Ashfaque Ahmad Hashmi, was entitled to a show-cause notice if it was intended to terminate his services. He relied on the phraseology of Government order issued on 29th August, 1996 by which the services of the respondent were terminated which, according to the learned counsel, contains a recital that the respondent's services were terminated in light of the dictum of this Court in Shaikh Manzoor Ahmad's case (supra). He submitted that this Court has authoritatively laid down the law in the aforementioned judgment that the Government had no power to exempt a person from appearing before the Public Service Commission or in other words no person could be appointed under any circumstances to a post under the Government carrying BPS-16 and above except on the recommendations of the Public Service Commission. The learned Advocate-General vehemently contended that the law laid down in Shaikh Manzoor Ahmad's case had binding force and the Government felt obliged to terminate the services of all those persons who had been appointed without the recommendations of the Public Service Commission. He submitted that, as was apparent from order of termination under discussion, a decision was taken by the Cabinet in general terms and separate orders were issued in each case by the competent Authority. Raja Shiraz Kayani also submitted that the order exempting the respondent from the requirement relating to the Public Service Commission was void in light of the judgment of this Court and also amounted to an 'ill-gotten gain. He, therefore, contended that for these reasons the writ petition filed by respondent was not maintainable.
4. The learned counsel for the respondent, Mr. Ghulam Mustafa Mughal, vehemently defended the judgment of the High Court and contended that the High Court had rightly held that a vested right had accrued to the respondent which could not be taken away without affording him an opportunity of hearing. He relied on judgments of this Court reported as Abdul Khalil v. Manzoor Ahmad (1998 PLC (C.S.) 1396) and Rashid Hussain v. Gul Afsar Khan and 3 others (1999 PLC (C.S.)
1248) as well as unreported judgment in Civil Appeal No,122 of 1998 titled Syeda Shamim Zohra v.
Massarat Shaheen, decided on 6th November, 1998.
5. In addition to that he contended that the order of termination of respondent's services was in fact blatantly illegal and it was only to cover up its illegality that reference was made to the judgment in Shaikh Manzoor Ahmad's case. In support of this contention he submitted the following points,--
(a) the judgment in Shaikh Manzoor Ahmad's case was rendered on 3rd of August, 1994 while the appointment of the respondent had already taken place in 1993 which fact makes the judgment inapplicable; and
(b) the Cabinet was not the competent Authority and, therefore, it could not terminate the services of the respondent.
6. On the point of audi alteram partem the learned Judge in the High Court relied on Malik Zafar Ali v. Inspector-General of Police (1995 SCR 234), and Abdul Khalil v. Manzoor Ahmad and 5 others (1998 PLC (C.S.) 1396) and unreported judgment of this Court titled Syeda Shamim Zohra v.
Massarat Shaheen, decided on 6th November, 1998. In Zafar Ali's case the Inspector-General of Police rescinded a promotion order without giving a show-cause notice to the affected person. He was restored to office by this Court. In Abdul Khalil's case an order was passed by the Mohtasib of Azad Jammu and Kashmir in respect of an employee without giving him an opportunity of hearing.
This Court repelled the submission that the affected employee was not entitled to hearing because the order set aside by the Ombudsman was a void order. It was held that it was an illegal order but was - not a void order. In Mst. Shamim Zohra's case it was held that there is a marked difference between a void order and an illegal order, therefore, hearing could not be dispensed with in cases falling in the latter category. There is a no cavil with the aforesaid propositions but, as will be presently seen, these are not applicable to the present case.
7. However, there is another aspect of the matter which needs to be noticed first. It was pleaded by the respondent that he was not afforded an opportunity of hearing. This is factually correct but question arises whether this legal defect make his appointment valid if it was in fact illegal? The answer is in the negative. It is, therefore, that in such situations the functionaries of the State are allowed to decide the matter afresh by issuing a show-cause notice so that if there is any illegality it may not attain perpetuation due to non-observance of the rule of audi alteram partem. In the judgment under appeal the High Court has relied on Zafar Ali's case but we regret to point out that the learned Judge in the High Court did not advert to the following aspect of the case which had material bearing on the point. We quote from para. 8 of the report:- "Since the said officer passed the order without hearing the appellant the order cannot be sustained and must be set aside. However, since the appeal is being decided on a technical point the Inspector- General of Police will be free to proceed afresh in accordance with the observations made in its judgment."
8. In the present case no such observations were recorded by the High Court which means that the judgment was followed partly and disregarded on a material point. The result is that if the appointment of the respondent was illegal it has attained perpetuation by the judgment under appeal.
9. While terminating the services of the respondent, the Government acted on the judgment of this Court which had declared that the power to exempt a person from appearance before the Public Service Commission was not available under any law for the time being in force. In the case in which this judgment was rendered the Government was a party and, therefore, was bound to honour the judgment in letters and spirit. Even otherwise all executive authorities in Azad Jammu and Kashmir are to act in aid of the Supreme Court. In presence of a binding judgment, there was no question of any fresh hearing. In fact there was no question of fact involved because admittedly the respondent had been exempted by the Government from appearance before the Public Service Commission as is evident from Government order, dated 10th of June, 1993. This order forms part of the High Court file as Annexure-C and was filed by the respondent himself. In our view, in these circumstances the respondent was not entitled to a show-cause notice and we hold accordingly.
10. We find no force in the submission of Mr. Ghulam Mustafa Mughal that the judgment in Shaikh Manzoor Ahmad's could not be applied retrospectively. As noted earlier, the respondent was exempted from appearance before the Public Service Commission on 10th June, 1993 while the judgment was rendered on 3rd -August, 1994. As rightly pointed out by Raja Shiraz Kayani, this Court did not make a new law in Shaikh Manzoor Ahmad's case but only interpreted law which already existed in the shape of section 22 of the Civil Servants Act, 1976. When a provision of law is interpreted by this Court it cannot be pleaded that it would apply to future cases. The correct legal position is that it is applicable from the time when the legal provision was enacted. This proposition came up for consideration in Muhammad Hussain v. Azad Government of the State of Jammu and Kashmir and others (1997 PLC (C.S.) 1047) in the following circumstances. Earlier in Shabir Ahmad v.
Azad Government and another (1997 PLC (C.S.) 478) this Court interpreted proviso (a) of section 4 of the Azad Jammu and Kashmir Service Tribunals Act, subsequently it was argued in Muhammad Hussain's case that,- "It was further averred in the application that the dictum of this Court in Shabir Ahmad's case would operate prospectively and not retrospectively, i,e,, it would apply to the cases where appeals to the Service Tribunal are preferred after the decision of this Court and not before that."
' This plea was rejected by observing as follows:-- "However, we do not subscribe to the view that the dictum in Shabir Ahmad's case would not apply to the appeals which were pending in the Service Tribunal at the time of judgment of this Court; no authority has been cited at the Bar to show that any contrary view was expressed on the point by this Court prior to the judgment in Shabir Ahmad's case. In other words, it was for the first time that the matter was adverted to and decided by this Court in the aforesaid case; the mere fact that previously no objection was raised by a party to the proceedings or no notice was suo motu taken by this Court with regard to the question of limitation, would not imply that any view contrary to one taken in Shabir Ahmad's case was taken by this Court."
11. The argument that the Cabinet had no authority to terminate the services of the respondent is also misconceived. The Government order by which the services of the respondent were terminated, as translated, was as follows:-- "Muzaffarabad ' 29-8-1996 ' NOTIFICATION "On the recommendations of the Committee set up under Notification No,S&GAD/889-989/Cabinet section/1996, dated 6th August, 1996 and the Cabinet decision taken on 18th August, 1997, President of Azad Jammu and Kashmir has terminated- the services of Mr. Ashfaque Ahmad Hashmi in light of judgment of the Supreme Court in appeal titled Shaikh Manzoor Ahamd v. Nargis Shaheen...
12. From the above it is clear that the Cabinet only took a general decision that the services of all those persons who were appointed in violation of the rule laid down in Shaikh Manzoor Ahmad's case may be removed from service and set up a Committee which formulated its recommendations. The termination order was not passed by the Cabinet but was passed by the President of Azad Jammu and Kashmir, which is the prescribed form of a Government order. It is clear from the order reproduced above that the Cabinet decision was separately taken while the termination order was issued on 29th August, 1996 by the President in light of the judgment of this Court.
13. Mr. Ghulam Mustafa Mughal also contended that the respondent has been discriminated against, and thus, Fundamental Right No,15 (EQUALITY OF STATE SUBJECTS) has been violated.
14. The averment made in the writ petition relating to the point of discrimination is found in ground
(1) of paragraph 6 and runs as follows,-- "That all kinds of discrimination have been prohibited by the Interim Constitution Act, 1974, therefore, the whole action of respondents which is politically motivated, offends the fundamental rights of the petitioner."
15. The ground reproduced above has no weight as no details or instances were given on the basis of which discrimination was pleaded. It was just stated that "the whole action of the respondents" was politically motivated. We fail to understand as to how implementation of a judgment of this Court can be politically motivated. Thus; this ground did not carry any legal value. Apart from that, we Find that this point is not mentioned in the judgment of the High Court from which it follows that it was not argued. However, in this Court this point have has raised in the concise statement and some documents have been attached. The Government has had no occasion to comment on this ground. According to the settled practice, it is a factual ground and it could not be raised for the first time in the concise statement. It is equally well-settled that new documents cannot be filed in this Court. Such details should have been given in the writ petition and all necessary documents should have been filed in the High Court., This cannot be done for the first time in this Court.
16. Another well-known principle which this Court is consistently following is that an illegal appointment cannot be restored in exercise of writ jurisdiction. In a number of cases this Court declined to restore to office persons who are wrongly removed from service but their basic appointments were illegal. One of the judgments in which this principle was applied has been cited by the learned counsel for respondent Ashfaque Ahmad Hashmi in another context. This judgment has been mentioned above and is reported as 1999 PLC (C.S.) 1248. We may usefully reproduce the relevant paragraph below,-- "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 Ra77aq v. Dil Khuram Abbasi and others, decided on 7- 4-1999. We may reproduce the relevant portion below:-- ' Consequently, 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 filled in afresh by the concerned authority after complying with the requirement of the relevant rules.
' 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."
Resultantly we accept the appeal, vacate the judgment of the High Court, and order the dismissal of the writ petition filed by respondent Ashfaque Ahmad Hashmi.