' KHAWAJA MUHAMMAD SAEED, J---This appeal, with the leave of the Court, is directed against the judgment of the High Court passed on 18-1-2001.
2. The facts relevant for the decision of this appeal briefly stated are that an advertisement was published in the daily Nawa-e-Waqt in the month of January 1999, through which applications were invited from the eligible candidates for the posts of Junior Clerks and Steno Typists. In response to this advertisement certain candidates applied for their induction against these posts.
Out of them respondent No,1 was accommodated against a vacant post of Steno Typist in B-12, whereas remaining respondents were inducted as Junior Clerks in B-5. Their period of probation was fixed for two years and it was mentioned in their appointment order that in case their performance was not found satisfactory they shall be relieved from their service without notices.
This order was passed by Chairperson of the Board on 29-1-1999. On the same date she also changed the nomenclature of the posts of Steno Typists, Typists, and Junior Clerks as Computer Operators subject to the approval of the Board. The order of conversion of the posts was subsequently approved in its meeting by the Azad Jammu and Kashmir Board of Intermediate and Secondary Education Mirpur (hereinafter to be referred as the Board) on 24-4-1999. However an order containing the approval of the Board was formally issued on 8-5-1999. In the meantime the Chairperson of the Board had passed another order that out of answering respondents, respondent No,1 who was recommended at the top by the Selection Committee, would be adjusted in B-12 and next to him in B-8 and remaining in B-5 respectively. On 19-1-2000 the Chairperson of the Board issued another order to the effect that all the Computer Operators would be treated as employees of separate cadre and their seniority would not be determined along with other employees of the Board. The Chairperson through another order dated 1-7-2000 promoted respondents Nos.1, 2 and 3 from B-12, B-8 and B-5 to B-16 and respondents Nos.4, 5,6 and 7 from B- 5 to B-12, However, respondent No,8 was promoted from B-5 to B-11. These respondents were accommodated against vacant posts of Junior Programmer B-16, Computer Operator-B-16, Data Processing Supervisor B-16, Assistant Computer Operator B-12 and Data Entry Operator B-11 respectively.
3. From the perusal of the last mentioned order it appears that all these posts were vacant which were filled in through promotion of the contesting respondents by the Chairperson subject to the approval of the Board. Respondents Nos.9 to 11 moved an application before the Chief Ehtesab Commissioner with a complaint that appointment of above referred respondents have been made by the Board without following the relevant law and rules and without the publication of any proclamation as required by law. The Chief Ehtesab Commissioner vide his order dated 12-7-2000 directed the Chairperson of the Board that the appointments made by her on 4-7-2000 my be set aside as these have been made in violation of the law. In the order, Chief Ehtesab Commissioner made it clear, that in case his order was not strictly complied with, necessary proceedings shall be initiated against her. In compliance with the order of the Chief Ehtesab Commissioner, on 4-7-2000 a further order was issued by Chairperson through which she once against accommodated some respondents in higher grade. Respondents Nos. 1 to 8 filed a writ petition in the High Court on 18-7- 2000, whereby they called in question the order of Chief Ehtesab Commissioner dated 12-7-2000.
During the pendency of this writ petition another notification was issued by the Secretary of the Board on 27-7-2000, whereby he cancelled the hereinbefore referred orders of the Chairperson.
Private respondents with the permission of the Court amended their writ petition and also assailed the order of the Chairperson and the Secretary of the Board. Their writ petition was allowed by the learned Judge in the High Court on 18-1-2001 by holding that the Chief Ehtesab Commissioner under law has no powers to interfere in any way in respect of matters relating to the terms and conditions of the civil servants or to order the cancellation of any appointment or promotion of any civil servant. The learned Judge in the High Court also set aside all the orders which were passed by the Board in furtherance to the order of the Chief Ehtesab Commissioner by holding them also of no legal effect. However, the learned Judge in the High Court allowed the competent authority of the Board to pass any appropriate order which it deems fit in the light of the law applicable to the Board.
4. Ch. 'Muhammad Azam Khan, the learned counsel for the appellants, argued that respondents Nos.1 to 8 were appointed illegally, without advertising the posts and without determining their merit by conducting test and interview. According to him they secured their appointment orders with the connivance of Chairperson against the spirit of law, thus illegal order obtained by them could not be protected in writ jurisdiction. He further argued that the Secretary of the Board in the light of the law and rules applicable in Board and even under the order of the High Court, was justified to pass order on 27-7-2000. Therefore no exception could be taken about this order. He in support of his contention relied on a case titled Rashid Hussain v. Gul Afsar Khan and 3 others 1999 PLC (C.S.) 1248 wherein it is laid down that it is mandatory requirement of rule 17 of the Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977 that all posts in BPS-1 and above shall be advertised in the newspapers before making appointments.
According to the learned counsel, as the respondents were accommodated against the posts of higher grade without advertising such posts, therefore, the recommendations of the Selection Committee, if any, were made in their favor, these were of no legal consequence and their appointments against such posts were illegal which were rightly set aside by the Secretary of the Board.
5. While controverting the arguments of the learned counsel for the appellants, Mr. M. Tabassum Aftab Alvi, the learned counsel for the respondents, argued that this appeal is liable to be rejected summarily without entering into its merits on the ground of estoppel. While elaborating his point of view he' submitted that all the respondents were inducted in service in the light of test and interview which were conducted by the Selection Committee after advertising the posts in the daily Nawa-e-Waqt. The nomenclature of these posts were changed and posts were upgraded and respondents Nos.1 to 8 were also promoted against such upgraded posts by Chairperson and later on appointment orders of private respondents were approved by' the Board and notification to that effect was issued by the Secretary of the Board. Therefore, both the Chairperson and Secretary, were not justified in law to file appeal before this Court. He in support of his contention relied on following case-law.
1. Abdul Qadir v. Abdul Karim and 4 others 1999 PLC (C.S.) 947.
2. Muhammad Aftab Khan v. District Education Officer and 2. Others 2001 PLC (C.S.) 28.
3. Ghulam Mustafa v. Azad Government and 2 others 1996 MLD 355.
4. Azad Jammu and Kashmir Government v. Habibullah Lone PLD 1984 SC (AJ&K) 13).
' The facts of the first case were that Abdul Karim, respondent, who was serving in the office of Advocate-General, applied for retirement. The Advocate-General allowed his request and passed order of his retirement. He received a substantial amount of pensionary benefits in the light of his retirement order. He thereafter moved an application before the Advocate-General that as military service performed by him before his appointment in the office of Advocate-General had not been counted which had caused loss to him, therefore, he may be reinstated in the service. The Advocate-General allowed his application and reinstated him to his service vide order dated 4-1- 1992. On 1-2-1992 another order was issued by Advocate-General wherein he stated that reinstatement order has been obtained by Abdul Karim by suppressing true facts from him.
According to him the retirement order was issued on the request of the respondent and he had also received the commutation amount, therefore, he was not justified to seek review of his retirement order. The learned Advocate-General further opined that even otherwise he was not authorized under law to entertain appeal or review against his own orders. Later on the Prime Minister of the time, on the representation filed by Abdul Karim, reinstated him to his service from the date of his termination with full back-benefits. This order was sent to the Chief Secretary for compliance by the Prime Minister who sent it to the Secretary Law. In the meantime respondent Abdul Karim moved another application before the Prime Minister that the order passed by him has not been implemented. He requested that a direction be issued to the Secretary Law to implement the order. After waiting for a considerable period, the respondent filed a writ petition in the High Court in which he submitted that as his file has not been resubmitted to the Prime Minister, therefore, it shall be presumed that the respondents, therein, had no objection to keep the direction of the Prime Minister pending before them. He required that a necessary writ be issued directing the respondent, therein, to issued necessary orders in the light of the direction of the Prime Minister.
The writ petition was allowed. Abdul Qadir with the leave of the Court filed appeal before this Court against the above referred judgment of the High Court. In that case the principle of estoppels by conduct was allowed against respondent Abdul Karim. This Court held that respondent having requested for retirement and having received a substantial amount of pensionary benefit, could not be allowed to turn round to demand reinstatement.
' In Muhammad Aftab Khan's case the appellant had challenged the proceedings which were conducted in pursuance of the judgment of the High Court. It was laid down that as he had participated in proceedings taken in pursuance of the judgment of the High Court and had failed to obtain his appointment, therefore, he was not justified to challenge the impugned judgment of the High Court passed in exercise of writ jurisdiction. It was laid down that principle of estoppel shall apply against him because a party cannot be allowed to blow hot and cold in the same breath. This authority like first authority has got distinguishable facts.
' In Ghulam Mustafa's case the site-plan was changed with the mutual consent and agreement between the Committee and the allottees of the plots. Subsequently the change effected with consent in site-plan was assailed by the appellant in the High Court as well as before this Court. It was held that as he had participated in the proceedings of subsequent allotment, therefore, he cannot come forward with a voltae . Face to challenge the subsequent allotments made with, mutual consent and agreement between the Committee and the allottees. This judgment has also distinguishable facts and has nothing common with the facts of the present case.
6. Mr. M. Tabassum Aftab Alvi, the learned counsel for the respondents, further contended that both the Chairperson and the Secretary have got no locus standi to challenge the order of the High Court in appeal before this Court. In support of his contention he relied on Government of Pakistan through Secretary Ministry of Defence and another v. Gul Zaman and 8 others [PLD 1993 SC (AJ&K)
8]. Herein it is laid down that appeal to the Supreme Court can be preferred by a person who is aggrieved of the order or decree passed by the High Court. The learned counsel also relied on a case titled Azad Jammu and Kashmir Government v. Habibulah Lone [PLD 1984 SC (AJ&K) 13]. In this case the aggrieved party was the Azad Jammu and Kashmir Government whereas Law Secretary of the Government without the authority of the Government had directed the Additional Advocate- General to file petition for leave to appeal. Such direction was held without lawful authority and appeal was dismissed without entering into the merits of the case. Learned counsel for the private respondents further argued that the impugned order dated 27-7-2001 was passed by the Secretary Board without providing right of hearing to his clients in whose favor a right had accrued.
He in support of his contention relied on two authorities of this Court.
' In Abid Hussain Jafri and others v. Azad Government and others 1998 PLC (C.S.) 141, it is laid down that any order passed in violation of the principle of audi alteram partem would be deemed to be a nullity in the eye of law.
' In Rafique Akhtar Chaudhry v. Azad Jammu and Kashmir Government [PLD 1982 SC (AJ&K) 124], it is laid down that principle of natural justice demands that before taking any action calculated to take away a right having come to reside in a person, a show-cause notice be issued to such person, otherwise the action would be bad in law and liable to be ignored.
7. We have considered the respective arguments of the learned counsel for the parties and gone through the record of the case and law cited by them. The authorities referred to by the learned counsel for the respondents are distinguishable and have nothing common with the facts of the present case. Admittedly in this case the posts of Steno Typist* and Junior Clerks were advertised in the month of January 1999 in the daily Nawa-e-Waqt by the Secretary of the Board. From the record it is also proved that some candidates applied and appeared in test and interview and the Selection Committee in the light of the test and interview conducted by it, prepared a merit list of such candidates. On the basis of the recommendations made by the Selection Committee the Chairperson accommodated respondents Nos. 1 to 6 against the posts of Steno Typists, Typists and Junior Clerks on 29-1-1999. On the same date the Chairperson issued a notification for the conversion of the posts of Steno Typists, Typists and Junior Clerks to the posts of Computer Operators subject to the approval of the Board, Later on, the Board approved this change of nomenclature in its meeting held on 22-4-1999, however the formal notification containing the approval of the Board was issued on 8-5-1999. In the light of these facts respondents Nos.1 to 3 were given B-16, from B-12, B-8 and B-5 respectively. In the same way the respondents Nos.4, 5, 6 and 7 were given B-16 from B-5 and respondent No,8 was promoted in B-11 from B-5. These posts of higher grades were not advertised as such eligible persons fulfilling the requirements of these posts were deprived to contest on merits. All these orders were passed by the Chairperson in an arbitrary and unguided A manner just to extent under benefit to private respondents. Under rule 17 of the Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977, all posts in B-1, and above have to be advertised in the newspapers. This is a mandatory requirement, therefore, appointment made in violation of this rule cannot be produced under law.
Since the above referred posts were not advertised as required by rule 17 of the above referred law, therefore the recommendations made by any Selection Committee and appointment made in consequence of such recommendations are of no consequence.
' The appointments of private respondents by promotion against such upgraded posts are illegal and cannot be maintained. The Secretary of the Board, therefore, was justified to cancel these orders which were passed in favor of private respondents in an arbitrary and unguided manner.
This fact has not been brought by the parties to our notice as to whether these posts were created earlier under the approval of the Controlling A Authority or were subsequently created by the Chairperson subject to the approval of the Board. However, the appellants are directed to fill these posts strictly in accordance with the law and rules applicable.
' This appeal is accepted as indicated above, consequently the judgment of the High Court stands amended.