MUHAMMAD AFZAL ZULLAH, J.-Baz Muhammad has, by this writ petition, challenged the order, dated 12th February, 1968 passed by the Commissioner, Quetta Division Respondent No. 1 on an appeal filed by Haji Malik Noor Muhammad (respondent No. 2) whereby he (the petitioner) was removed from the post of Levy Sowar in the Levy Services for Chaman.
2. The facts leading up to this petition, which are stated in detail in the written reply filed by the respondent No. 1, are as follows :- The Government of Pakistan sanctioned 24 temporary `Sectional Levy Services' for the Toba Achakzai area in the year 1964-65. The correspondence as a result of which these posts were sanctioned indicated that the action was taken as a result of "establishment of Levy's post at Toba".
Though initially the posts were considered as temporary, but it is admitted before us that they have continued for the last five years and the respondent has, for the time being, no intention of abolishing the same. Thus the establish--ment as well as the posts appear to be for an indefinite period. Acting on the standing instructions (applicable to the Levies), a copy of which has been placed on the file, three posts were allocated to the Malezai tribe. The remaining posts went to Hamidzai and Nusratzai tribes. In this petition, we are not concerned with the posts going to the latter two tribes. Haji Malik Noor Muhammad respondent, acting as representative of the Malezai tribe, nominated three persons from his own subsection, i.e. Jahan Kahol tribe, who were duly appointed with effect from 20th May, 1965. Apart from Jaban Kahol subsection, there are two other subsections in Malezai tribe. They are Asghar Kahol and Jalal Kahol. The petitioner belongs to the former. A representation was made in respect of the nomination from only one subsection ; whereupon the Deputy Commissioner ordered the appointment of the petitioner as a Sowar with effect from 1st August, 1966, in place of Amin Jan, the nominee of Haji Malik Noor Muhammad respondent. It is clear from the reports/orders placed on the file that in the redistribution, out of three two posts were allocated to Jahan Kahol, the subsection of Haji Malik Noor Muhammad, while one was allocated to the remaining two subsections, i.e., Asghar Kahol and Jalal Kahol. In other words, one post on which the petitioner was appointed went to two subsections while two posts went to one subsection of the respondent No. 2.
Aggrieved by the order of the Deputy Commissioner, Haji Malik Noor Muhammad respondent filed an appeal without impleading the present petitioner, on 20th October, 1966 before the Commissioner ; against the aforementioned distribution of the posts and challenged the appointment of the petitioner in place of his nominee. It appears, in the meanwhile, on an application by the petitioner, the Deputy Commissioner approved the appointment of one Haji Akbar as Bazgir substitute of the petitioner. The Commissioner by his order, dated 12th February, 1968 without any notice to the petitioner, set aside his appointment and restored the appointment of the nominee of the respondent from Jahan Kahol subsection. Hence this writ petition.
3. Mr. K. B. Marri, learned counsel for the petitioner, has urged that the acceptance of the appeal by the Commissioner which adversely affected the petitioner, so far as the Levy post is concerned, is illegal because he was not heard ; and, in any case, this being a removal from the post, the same could not take place without an opportunity of showing cause.
Mr. Kamal Mustafa Bokhary, the learned Assistant Advocate-General representing respondent No. 1, has vehemently argued that the hearing in this case was not necessary because the action of the Commissioner was of Administrative nature and that his decision on the appeal should be treated as if he dealt with only a representation ; therefore, the order passed by him, not being in his judicial capacity, is not open to scrutiny by the High Court under Article 98 of the Constitution. On merits, he contended that the petitioner got a Bazgir (substitute) appointed which was not permissible under the standing instructions and as such his removal from service is unexceptionable. Mr. S. H. Jaffri, the learned counsel for respondent No. 2, has adopted the same arguments.
4. The standing instructions which, it is admitted by the learned Assistant Advocate-General, were issued by the Agent to the Governor-General, have by now been consolidated in the form of numbered clauses. In all there are 29 clauses and the distribution, definition of posts, appointment/ nomination thereto and discipline including dismissal, reduction, suspension, etc., have been comprehensively dealt therein. Clause 20 deals with appeals. It reads as follows;--- "Appeals against the orders of the Political Agents will lie to the Agent to the Governor-General in all cases, except reprimand."
In Chapter VII, miscellaneous matters are dealt with which speak of the other service conditions.
On 13th March, 1954, the Agent to the Governor-General and Chief Commissioner in Baluchistan, by Notification No. 1-p2/49, made and promulgated the rules for the appointment, discipline and right of appeal by members of Levy Service in Baluchistan. Rule 1 prescribes the appointing authorities.
Rules 2 to 5 deal with penalties. They are dismissal, reduction, suspension, fine, recovery from pay and reprimand. Rule 6 gives a right of appeal. It reads as follows :-- "Appeal against the order of the Political Agents will lie to the Hon'ble the Agent to the Governor- General in all cases."
It is not contested before us that the provision of appeal does not make any distinction between the challenge to the orders of appointment and those passed in the nature of penalties. When called upon to show as to whether the post in dispute does not fall within the scope of service of Pakistan as defined in Article 242 of the Constitution, both the learned counsel for the A respondents, after reading the provision, were unable to show as to why this post is not covered by that definition. Mr. K. M. Bokhary, the learned Assistant Advocate-General, however, brought to our notice that the Agent to the Governor-General, by notification, dated 15th April, 1939 (R/14) excluded the Levy posts from the operation of the Civil Service; (Classification, Control and Appeal) Rules, and this he did under clause 4(1) thereof. The learned Assistant Advocate-General urged that there is no provision in the excluded rules giving right of bearing to a person to be adversely affected by an order in appeal. He, however, conceded that even if there is no provision in these rules, 'of a right of hearing, the same will be read therein by virtue of the law declared by the Supreme Court : that unless it is expressly excluded, the right of hearing in such like matters will be deemed to be a part of the relevant law on the salutary principle of audi alteram parlem. In other words, the contention of the learned A. A.-G. Is that if these rules had not been excluded from operation in the present case, the petitioner would have a right of hearing. The aforesaid exclusion, according to him, has changed the position. And that his (petitioner's) position is no better than that of an ordinary private employee, therefore the Commissioner's action, which is only administrative and discretionary, cannot be interfered with.
5.We are unable to accept the above reasoning. The learned A. A: G. Has not taken note of the essential difference between the two aspects of the case ; firstly, the selection by a competent authority of a suitable person ; and secondly, the procedure adopted for such selection. The standing instructions deal with both the matters. Sufficient guidance is available for the appointing authority so as to make a correct selection. However, the point for consideration involved in this petition is not whether one or the other candidate should have been appointed. On the other band, the legal ground urged on behalf of the petitioner is that in making the selection/ appointment, the Commissioner has acted illegally by adopting a wrong procedure. It is not necessary for us to decide to this case as to what is the scope of the jurisdiction of this Court under Article 98 of the Constitution in the matter of selection/appointment. It is correct that to some extent it will depend upon the discretion of the appointing authority as to who is the suitable person ; but at the same time the question may require examination whether this discretion is controlled by the standing instructions. We are, however, clear that the extreme position canvassed by the learned A. A: G., that there is no difference between the appointment of a private employee and that of a Levy Serviceman, is not correct.
6. On the second aspect of the matter, which is the subject of contention raised by the learned counsel for the petitioner, the question to be decided is whether or not the competent authorities are bound by the standing instructions (aforementioned) and the rules promulgated in 1954 by the Agent to the Governor-General. The instructions were issued by the rule making authority. They are express and definite and above all the authorities concerned purport to have always acted under these instructions. Even in the impugned order, the learned Commissioner has relied on a standing instruction in so far as the suitability of the petitioner is concerned. We do 6 not agree with the learned A. A.-G. That the Commissioner decided the matter on a representation only. The memorandum filed by respondent No. 2 was drafted in the form of an appeal and the Commissioner decided the case as an appeal. Clause 20 of the standing instructions provides for an appeal. We find that even in the impugned order the respondent No. 1 has purported to act under these instructions. If that is so, the only fact that these instructions are not shown to have been notified, will not detract from their efficacy and application as rules. See Pakistan v. Sheikh 4bdull Hamid (PLD1961SC105).
7. The matter does not end here. The Agent to the Governor-General did frame rules. He promulgated the same by Notification No 1-P2/49, dated 13th March, 1954. It has already b.-en noted that rule 6 provides for an appeal. It is, therefore, clear that while entertaining and deciding the appeal, the Commissioner purported to have acted under the instructions in the form of rules and also under the rules of 1954. This being the law under which he was acting, if he violates any substantive provisions thereof his action would immediately become scrutinizable by this Court under Article 98 of the Constitution. There is no doubt about the proposition that the general principle of audi alteram parten is an unwritten provision of every law of Pakistan, unless it is specifically excluded. The incidence of appeal in service matter being undoubtedly valuable right for the appellant, is no less, rather more, important so far as the right of the person, who is to be adversely affected by a decision in appeal, is concerned. We are unable to accept the contention of the learned A. A. G. That under the law that the Commissioner was acting, he could accept the appeal without hearing the person/party who is to be adversely affected by his order. We hold that the petitioner had a right to be heard in the appeal filed by Haji Malik Noor Muhammad respondent. He was not afforded an opportunity of hearing by the Commissioner. As a consequence, we accept this petition with costs and set aside the impugned order, dated 12th February, 1968, as illegal and without lawful authority. That being so, we further hold that the appeal before the Commissioner has not been lawfully disposed of. It will be deemed to be still pending before him. The case is remitted back to him. He will act according to law and decide the appeal after hearing the parties concerned.