' KHAWAJA MUHAMMAD SAEED, J.---This appeal, with leave of the Court, is directed against the judgment of the Service Tribunal passed on 17-8-2001 whereby the appeal filed by the appellant was dismissed.
2. Relevant facts, briefly stated, are that the appellant was inducted in the Forest Department as Guard on the direction of the Forests Minister on 14-7-1998 subject to the approval of the Selection Committee. Later on his case was referred to the Selection Committee for consideration. The Selection Committee found him fit for the said post and submitted its recommendations. His initial appointment as Guard was approved on the recommendations of the Selection Committee by his competent authority. On 31-54998 he was deputed for departmental training which he successfully completed. Respondent No,5 challenged his appointment order before the Chief Conservator of Forests on 27-12-1999 who vide his order dated 31-12-1999 without providing him right of hearing, held his appointment against the rules on the ground that the post was not advertised in the newspapers and his merit was not determined alongwith other eligible candidates through test and interview by the Selection Committee. Feeling aggrieved, from the order of Chief Conservator of Forests the appellant, herein, filed his appeal before the Service Tribunal which after taking necessary proceedings was ultimately dismissed by the Service Tribunal vide judgment under challenge dated 17-8-2001. Hence this appeal.
3. Mr. Muhammad Yaqoob Khan Mughal, the learned counsel for the appellant, argued that the Chief Conservator of Forests was bound under law to issue show-cause notice to his client before passing any adverse order against his vested service rights. According to him even though his client was initially appointed without the recommendations of the relevant departmental Selection Committee however his case was later on referred to the Selection Committee for its opinion. The departmental Selection Committee in the light of the unblemished service record of his client, recommended him for the post of Forests Guard, therefore, the requirement of the rules was fulfilled. He further argued that respondent No,5 was also inducted in the service on the direction of the Forests Minister without advertising the post, therefore, he was not justified in law to seek the removal of the appellant from his service on this ground. It was further argued by the learned counsel that the appellant was appointed in accordance with the practice of the Forest Department followed in those days. According to the learned counsel many other persons in the Forest Department were inducted in service without advertisement of their posts. The contesting respondent is one of such employees of the department who was inducted without advertisement of the post and now has been promoted by Chief Conservator of Forests against the post of Forest Guaid. According to him his client was sent for departmental training which he successfully completed, therefore, in these circumstances the Forest Department was not justified in law to deprive his client from his service for the negligence of the department in following prescribed procedure at the time of his induction as Forest Guard. He further argued that the order of appointment of the appellant was passed by the competent authority and now he has also completed three years service, therefore, he could not be removed from his service without show- cause notice. He in support of his contention placed reliance upon a case titled Umar Hayat v. Azad Government of the State of Jammu and Kashmir and others 1999 PLC (C.S.) 93, wherein it was laid down that no adverse inference can be drawn against the appellant in the absence of an opportunity to explain his position.
4. On the other and Ch. Muhammad Ibrahim Zia, the learned counsel for respondents No,5, argued that no objection was taken in the memo of appeal before the Service Tribunal about the appointment order of respondent No,5, therefore, the appellant cannot be allowed to build an inconsistent case before this Court by appending appointment order of his client or by relying upon his promotion order against the post which remained under the occupation of the appellant for three years. The learned counsel further argued that as appellant was appointed against this post in violation of rule 17 of the Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977., (hereinafter to be referred as Rules of 1977), therefore, his appointment order was illegal and he was not justified in law to protect ill-gotten gains through Courts established under law. In the wisdom of the learned counsel for the contesting respondent the Service Tribunal in the light of the peculiar facts of this case was justified in law in rejecting his appeal through judgment under challenge. He in support of his contention relied upon a case titled Secretary for Prime Minister Secretariat, Azad Government of the State of Jammu and Kashmir Muzaffarabad and others v. Muhammad Aslam and 5 others (PLJ 2000 PLC (C.S.) 155), wherein at page 64 the following observations have been recorded:-- "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 alterain partem' has universal application. It has been held by this Court in 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 of 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 opportunityof hearin' 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."
(Underlining is ours)
5. We have considered the respective arguments of the learned counsel for the parties and gone through the record of the case. It is unfortunate that after the enforcement of Rules of 1977 the arbitrary practice is still being followed by the departments of the Government whereby without advertising the vacant posts the persons are inducted in service subject to the confirmation by the Departmental Selection Committee, whereas it has been repeatedly laid down by the superior judiciary that rule 17 of the Rules 1977 are mandatory in nature, therefore, after the enforcement of these rules no post in the service of Azad Jammu and Kashmir can be filled in without advertising the same and without allowing the eligible desirous candidates to compete on merits. In the present case both the contesting parties have been inducted in service without advertising their posts, on the orders of the Minister for Forests. This arbitrary and unguided procedure adapted by the Forest Department shows that persons on the helm of affairs are not giving much importance to the law of the land. We have also noticed that besides the above referred provision of law the Government through notifications issued on 20-6-1983, 20-8-1989, 1-9-1996, has repeatedly imposed a ban on the appointment of any person in the service of Azad Kashmir subject to the approval of the Selection Committee but these Government Notifications are also flouted. The initial appointment of the appellant without the advertisement of the post is illegal and the procedure which was adapted for the confirmation of this illegal order is also opposed to the spirit or rules because there was no other candidate before the Departmental Selection Committee when it made assessm ent in favor of the appellant about his merits for the post of Forest Guard, therefore, the order passed by Chief Conservator of Forests and Maintained by the Service Tribunal is a legal order which cannot be interfered with on technical grounds, that the appellant was removed from his service without issuing show-cause notice and providing him the opportunity to explain his position. .We repeat the words which were earlier used by this Court in a case titled Secretary for Prime Minister Secretariat, Azad Government of the Sate of Jammu and Kashmir Muzaffarabad and others v. Muhammad Aslam and 5 others 2000 PLC (C.S.) 155, that "if the appellant had been given an opportunity of hearing his answer could have been that post was not advertised, as this is admitted position. in these circumstances hearing was not necessary before termination of service of the appellant".
6. In view of the above, the appeal of the appellant having no merit is, therefore, dismissed.
7. The appellant has also placed on record the appointment order of contesting respondent.
Private respondent was also appointed without the advertisement of post and has not been promoted against the post of Forest Guard without determining whether the post was available in the quota of direct recruitment or for departmental promotion. If the post was not available for departmental promotion then in that case the departmental was obliged under law to advertise this post and allow the appellant along with other eligible desirous candidates to contest on merit for this post. An objection has been raised by the learned counsel for contesting respondent that as appellant had not raised these points in the Service Tribunal, therefore, he cannot be allowed to raise these points before this Court. No doubt the appellant has not challenged the (sic) respondent No,5 before the Service Tribunal. He has tried to defend his own appointment order. In para (URDU TEXT) of the appeal before the Service Tribunal, the appellant has clearly stated that the post against which he was inducted fall in the quota of direct recruitment and in his last paragraph he has again stated that ten more Forest Guards have been appointed by applying the same procedure but their appointments have not been challenged. In his petition for leave to appeal before this Court in para. 4(c) the appellant has repeated that the post against which he was appointed was in the quota of direct recruitment. In his concise statement the appellant has clearly mentioned that private respondent was not appointed in accordance with the rules. He has also placed his appointment order on the file of this Court whereby he was inducted in service on the direction of Minister for Forests. This shows that in Forest Department the practice adapted for induction of persons in service is opposed to the mandatory provisions contained in the relevant law and rules. This illegal practice has come in our notice that mandatory provisions are being violated, therefore, we feel it expedient to direct the Secretary Forests and Chief Conservator of Forests to ensure that in future this practice is not repeated. The Chief Conservator of Forests shall pass appropriate order in respect of such employees who after the enforcement of the Rules of 1977 were inducted in service without advertisement of posts and without the determination of merit by the concerned Selection Committee. In case any appointment is found to have been made, contrary to the rules, the Secretary Forests and Conservator of Forests shall follow the process of law in order to fulfil such vacancies in accordance with the spirit of law.