2002 PLP (C (PLC(CS))

MUHAMMAD YUNUS SURAKHVI, J.‑‑‑This appeal, by way of leave of the Court, has been directed against the judgment of the High Court passed on 23‑10‑.2000, whereby accepting the writ petition filed by the respondents herien, the orders of termination of their services were declared to have been passed without any lawful authority.

2. The brief facts of the case are that the respondents herein were inducted as followers in Rangers Police vide different orders in the year 1997‑

98. However, their services were terminated by the Deputy Inspector General of Police vide Order Book No.46 dated 28‑2‑1998 on the ground that their appointment orders are illegal in view of the order of Inspector- General of Police dated .11‑6‑1997; as before their appointments the posts were not advertised as was necessary. The respondents herein challenged the order of termination of their services, inter alia, on the ground that they were condemned unheard. No notice was issued to them. It was further alleged that the aforesaid orders of Inspector‑General of Police and Deputy- Inspector‑General of Police were all without jurisdiction.' The High Court accepted the writ petition on the ground that the respondents were condemned unheard and. that even otherwise it was not necessary to advertise the posts in question under the relevant rules. It is against the aforesaid judgment of the High Court that the present appeal has been filed by the appellants.

3. Mr. Riaz Navid Butt, the learned Additional Advocate‑General appearing on behalf of the appellants, has argued that the judgment of the High Court is not sustainable because the appointments of respondents were made without advertising the posts in newspaper and that in any case the appointments were also against the quota for the various Districts. He has argued that the order passed by the Deputy Inspector‑Journal of Police terminating the of respondents was according to law

4. On the other hand Sardar Muhammad Yasin Khan the learned counsel for the respondents, vehemently controverted the arguments raised by the learned Additional Advocate‑General. He submitted that the appellants having been appointed by the Deputy Inspector‑General of Police have been rendering their services for a pretty long time and their services could not have been terminated without giving them a show‑cause notice and without hearing them. The learned counsel contended that the impugn judgment passed by the High Court suffered from no infirmity or illegality as pointed out by the learned counsel for the appellants. The learned counsel contended that even if the contention of the learned counsel for the appellants is accepted as correct, it cannot be said that the orders of appointment of respondents were ab initio void as there is a vast difference between an illegal order and. an order which is ab initio void.

5. After hearing the respective contentions of the learned counsel for the parties, it may be stated that it is an admitted fact that before terminating the services of respondents by the Deputy Inspector‑General of Police on the basis of order of Inspector‑General of Police, the authorities did not provide the respondents an opportunity of hearing. Thus, the principle of audi, alteram partem was violated by passing the order of termination of respondents. The respondents after their appointment had been rendering their services for a pretty long time and had been receiving the emoluments from the concerned department but all of a sudden they were terminated without affording them an opportunity of hearing thereby violating the principle of audi alteram partem which is almost a principle of universal application. In a case reported as Azad Jammu and Kashmir Government v. Muhammad Siddiqui Haidri (2000.PLC (C.S.) 714) it was observed by this Court at page 176 of the report in a following manner:‑‑ "In our view the High Court rightly quashed the order by which the services of the respondent have been terminated . ..... .... .... ... It is well‑settled that such a finding cannot be given behind the back of a person who is accused of such an act. Thus, the respondent was condemned unheard which is not permissible in law. Therefore, his termination order has been rightly quashed by the High Court." In an unreported case titled Azad Government and others v. Muhammad Munsaf and others (Civil P.L.A. No.65 of 1998, decided on I5‑5‑1998) it was observed by this Court as follows:‑‑ "I have given due consideration to the matter. It may be observed that irrespective of the fact as to the validity of the aforesaid notification on which the learned counsel for the petitioner relies, the services of the respondents could not be terminated without serving notice upon them. It is well settled principle of law that if there is a provision in the relevant law that the services of a civil servant can be terminated without serving any notice upon him, then such notice can be dispensed with and not otherwise; where a law is silent with regard to the service of notice, it cannot be dispensed with. Therefore, the High Court has rightly held that the order of removal of the respondents being violative of rule of audi alteram partem is not sustainable." The principle enunciated in the above‑cited authorities of this, Court clearly postulates that before passing an adverse order Against a person or imposing a' penalty upon him, it is essential to give him a notice for personal hearing and i the same cannot be dispensed with unless there is a specific provision in the relevant law that the services of civil servant can be terminated without serving any notice upon him. In a case titled Malik Zaffar Ali v. Inspector‑General of Police (1995 SCR 234) it was held that the promotion order of appellant was conditional in nature yet the same was acted upon. If the Inspector- General of Police was of the view that the order may be withdrawn due to some illegality or invalidity he could not do so without giving an opportunity to the appellant therein to show cause against the proposed action. In a case reported as Karachi Pori Trust v. Altaf Ahmed and another (1996 SCMR 1205) it was held by the Supreme Court of Pakistan that person having been appointed on regular basis with six advance increments could not be treated as probationer and ‑even if he was a probationer, unsatisfactory conduct could not be made basis for terminating the probation without resorting to show‑cause notice procedure and inquiry as required under Government Servants (Efficiency and Discipline) Rules, 1973. It was also observed that the latter position is also affirmed by Supreme Court of Pakistan in a case reported as. Muhamarnd Siddique:Jraved Chaudhry v. The Government of West Pakistan (PLD 1974 SC 393). In a case reported as Hussain Ahmed Islahi v. Azad Government and another (1992 SCR 370) it was observed that the appellant was not given opportunity of personal hearing which was a mandatory requirement. Order of majority penalty was declared illegal and invalid.

6. The learned counsel for the appellants argued that the orders of appointments of respondents were ab initio void, as such there wash necessity of giving them a notice for hearing: before terminating their services. The aforesaid argument is not sustainable because there is a vast difference between an order which is ab initio void and one which is not violative of some rules. It is not the case of appellants that the appointment of respondents was made by an authority which had no jurisdiction to appoint the respondents. Thus, the order of appointment of respondents, even if the same may be illegal; but the same cannot be regarded to be ab initio void. Our aforesaid view .stands supported by a reported case of this Court titled Abdul Khali! v. Manzoor Ahmed and others (1998 PLC (C.S.) 1396), wherein similar principle was thoroughly discussed.

7. The learned counsel for the appellants also averred in the memo. of appeal that the appointments of respondents were made against the quota available against each District but during the arguments never pressed the said point nor my material was brought on 'record that the appointments of respondents were made against the quota reserved for each District. In the light of what has been stated above, finding no force in this appeal, the same stands dismissed with costs. H.B.T./299/SC(AJ&K) Appeal dismissed.