1. ' SARDAR MUHAMMAD ASHRAF KHAN (CHAIRMAN).-This service appeal under section 4 of Azad Jummu & Kashmir Service Tribunal Act, 1975 has been directed against the Order Book No, 179 dated 6-7-1976 of respondent No, 1 by which the appellant was reverted to the post of Selection Grade Constable from that of Head Constable and also transferred permanently from District Mirpur to the District Kotli.
2. ' The relevant facts for the purposes of this appeal are that at the time of bifurcation of District Mirpur into two separate Districts of Mirpur and Kotli Javed Akhtar appellant and Muhammad Rashid respondent No, 2 were both Selection Grade Constable in the Police establishment of District Mirpur and were placed at sections Nos. 2 and 3 in the list C/2 respectively (copy Annexure "A" with the appeal). The appellant was transferred to the newly-created District Kotli but he made a representation to the Deputy Inspector-General Police Range/Headquarter against this transfer in which he sought his retransfer to District Mirpur on the ground that his transfer had adversely affected his chances of promotion as he is included in list C/2 as distinct from C/2 on account of having not passed the lower class training courses. Accepting his representation he was retransferred to Mirpur District by the said Deputy Inspector-General vide his Order Book No, 101 dated 1.4-1976 (copy Annexure "B" with the appeal) where he was first promoted as Officiating Head Constable and later on as full fledged Head Constable against a vacancy caused by the promotion of one Muhammad Rashid Head Constable by Superintendent Police, Mirpur vide his Order Book No, 159 dated 10-6-1976 and Order Book No, 183 dated 17-6-1976 respectively (copies Annexures "C" and "D" with the appeal). The respondent No, 2 submitted a representation to the respondent No, 1 against the order of the appellant's retransfer to Mirpur District on the plea that his (appellant's) transfer to Mirpur District had adversely affected his right of promotion inasmuch as the appellant because of his transfer got promotion to the rank of Head Constable on preference to him. The respondent No, 1, accepting the representation and amending the Deputy Inspector- General's Order Book No, 101 dated 1-4-1976, sent back the appellant to District Police Kotli in the capacity of Selection Grade Constable and the Superintendent Police Mirpur was directed to fill in the vacancy so caused by the transfer of the appellant to Kotli District by promoting the respondent No, 2 with effect from 17-6.1976 vide his Order Book No, 179 dated 6-7-1976. This order of the respondent No, 1 was given effect to by the Superintendent Police Mirpur by his Order Book No, 191 dated 11-7-1976 (copy Annexure "F") whereby the appellant after reversion to the rank of Selection Grade Constable was transferred to Kotli District and the respondent No, 2 promoted to the rank of Head Constable from 17-6-1976, the date on which the appellant got promotion as Head Constable. The rejection of the appellant's representation by respondent No, 1 against the said order of his reversion and transfer has resulted in the present appeal. The case of the appellant mainly rests on the ground that the impugned order inflicting upon him the punishment of reduction in rank from the post of Head Constable to that of Selection Grade is illegal and void as the same has been passed without affording him the opportunity of hearing in violation of service rules as well as principle of natural justice. It is accordingly prayed that by setting aside the same the appellant be declared to be still holding the post of Head Constable in the Police establishment of Mirpur.
3. ' The respondents have contested the appeal and have put in separate written objections which are mainly to the effect that the appeal is time barred and that no terms and conditions of the service of the appellant have been infringed giving him the right of appeal as the appellant being the resident of Kotli District was necessarily to be transferred there, where his prospects of promotion have been duly guaranteed by the impugned order.
4. ' We have heard the learned counsel for the parties and have also perused the record of the case.
5. The learned counsel for the appellant has vehemently argued that the impugned order have had the effect of reduction in rank of the appellant and as such under law as well as under the principle of natural justice it was incumbent upon the respondent No, 1 to give the appellant opportunity of being heard before deciding the representation of the respondent No, 2 in which the impugned order is made and since no such opportunity had been afforded to the appellant the impugned order stands vitiated and is unlawful and inoperative. This argument of the learned counsel for the appellant is quite forceful to which no satisfactory reply as to why the appellant was not personally heard before making the impugned order on the representation of the respondent No, 2 could be made by the learned counsel for the respondents. There is no denying the fact that by the impugned order the appellant was not only transferred to another District but was also reverted from the rank of Head Constable to that of Selection Grade Constable. The contents of paras. 1 to 7 of the memorandum of appeal are admitted to be correct in the written objections filed on behalf of respondent No, 1 which means that it is correct that, the appellant, as alleged by him in para. 4 of the memorandum of appeal, got promotion to the post of Head Constable against a clear vacancy falling vacant as result of the promotion of one Head Constable to the post of Assistant Sub-Inspector. Thus there remains no doubt that a right had vested in the appellant to continue to hold the post of Head Constable indefinitely save he is reverted in accordance with law. The reduction to lower post or time scale is enumerated to be one of the major penalties that can be imposed on the member of the service by way of punishment under Article 3 (iii) K. S. R., Vol. II and under Article 32 of same Volume of K. S. R. No order of reduction in rank can be passed on him unless he has been informed in writing of the grounds on which it is proposed to take action and has been afforded an adequate opportunity of defending himself. In the instant case there appears to be no ambiguity about the nature and impact of the impugned order by which the appellant was both reverted from the rank of Head Constable to the Selection Grade Constable and transferred to another District.
6. ' In the instant case the above stated provisions of K. S. R. Regarding the entitlement of a Civil Servant to show-cause notice and an opportunity of defence in the case of his reduction in rank are fully attracted. The acceptance of the representation of respondent No, 2 against the appellant was necessarily to result in the vacation of the Deputy Inspector-General's order of retransfer of the appellant to District Mirpur and consequential reversion of the appellant from the post of Head Constable to Selection Grade Constable which result the impugned order has actually produced. It is an admitted fact that the appellant was neither informed of the lodging of representation by the respondent No, 2 against him nor was personally heard by the respondent No, 1 before making the impugned order on the said representation which course he was bound to adopt under the mandatory rules referred to above which governed the terms and conditions of service of the appellant. This lapse or failure on the part of respondent No, 1 to give necessary show-cause notice to the appellant for action proposed to be taken against him and to afford him reasonable opportunity of defence and presentation of his side of the case has undoubtedly resulted in the clear violation of service rules thereby rendering the impugned order unlawful and inoperative.
7. ' Even if it is assumed for the sake of arguments that the appellant had no vested right under any law or rules to claim entitlement to show-cause notice or an opportunity of being personally heard before passing the impugned order on the representation against him it was still a requirement of principle audi alteram partem of natural justice that he should have been afforded full and fair opportunity of being heard before making any order on the said representation. But impugned order had been made at his back without hearing him which amounts to condemning him unheard inasmuch as the right which by promotion had vested in him to continue to hold the post of Head Constable has been adversely affected by his reversion as Selection Grade Constable.
8. As a result of the above discussion the impugned order of respondent No, 1 alongwith the Order Book No, 191, dated 11-7-1976 of Superintendent Police Mirpur made in persuance thereof is set aside declaring it to be unlawful, void and inoperative for having been made without giving necessary show-cause notice or an opportunity of being heard to the appellant who still continues to hold the appointment to the post of Head Constable in the Police establishment of District Mirpur. This order will not in any way affect the representation of the respondent No, 2 against the appellant submitted before respondent No, 1 who will be at liberty to dispose it of on merits according to law in the light of the observations made in this order. In the circumstances of the case, the parties are left to bear their own costs.
9. ' K.H. ABDUS SAMAD (MEMBER).-I agree.