1981 PLP (C (PLC(CS))

SARDAR MUHAMMAD ASHRAF KHAN (CHAIRMAN).‑We propose to dispose of both the above‑captioned Appeals Nos. 62 and 65 of 1978 by this single judgment as these arise out of one and the same impugned order and also involve the common questions of law and facts for determination. Briefly stated, the facts giving arise to the filing of the aforementioned appeals are that Messrs Muhammad Taj and Muhammad Sabir were appointed as Tehsildars in the Revenue Department by Government‑respon dent No. 2 vide its Order No. 1110‑1120/75 dated 19‑11‑1975. After their appointments they received settlement training and also passed departmental examination and were working as Tehsildars when the Government sent a requisition to the Public Service Commission for selection of six candidates on the basis of quota system for filing the vacancies of the posts of Tehsildars, The appellants also appeared in written test and viva voce test held by the Commission for the selection of the candidates for the post of Tehsildars but their names were not included in the list of the recommendees of the Commis sion sent to the Government which on the basis of the recommendation of the Commission finding the appellants unsuitable discharged them from service vide its Order No. 15‑17‑25 dated 1‑10‑

77. Feeling aggrieved of the aforesaid order of their removal from service the appellants lodged separate review petitions before the Government against it but as no decision was taken on their review petitions to their knowledge even after the expiry of statutory period of ninety days; they have now approached to this Tribunal by way of filing the present appeals for the redressal of their grievances arising out of the impugned order. In the memorandums of appeals the impugned order has been assailed on the grounds that the appellants having been substantively appointed to the posts of Tehsildars their services could not be terminated without a show- cause notice under Civil Servant Act, the rules made thereunder and the principle of natural justice embodied in a Maxim: Audi Alteram partem; that the impugned order is unsustainable inasmuch as the constitution and the appointments of the Members of the Public Service Commission on whose recommendations the impugned order was made has been declared unlawful by the Supreme Court in reply to a reference made to it by the President ; that the result of the test held by the Public Service Commission being favourable to the appellants their discharge from service was unjustified. Both the appeals were resisted by the respondents therein and written objections were filed in which it is contended that the impugned order is perfectly valid as no show‑cause notice was necessary before removing the appellants from service in view of the fact that the appointments of the appellants were purely on ad hoc basis subject to confirmation by Public Service Commission and were on a probation for a period of two years under the A J & K Revenue Officers Rules, 1970. It was further averred that in the list of the nominees of the Public Service Commission the names of the appellants do not appear and as such it is not correct to say that the result of the test of the Public Service Commission was favourable to the appellants. We have heard the learned counsel for the parties and have also gone through the relevant record of the cases. It has been contended by the learned counsel for the appellants that appellants being permanent employees of the Government they could not be removed from service without giving show‑cause notice to them and as no prior notice was served on them before passing the impugned order the same is unlawful being hit by the principle of natural justice contained in maxim: Audi alteram partem. On the other hand it is contended by the learned counsel for the respondents that in view of the ad hoc nature of the appointments of the appellants, on probation for a period of two years, no show‑cause notice was called for before terminating the services of the appellants. After giving our careful consideration to the arguments addressed at the bar by the learned counsel for the parties and also examining the relevant law and service rules we are of the opinion that the above contention of the learned counsel for appellants is devoid of any force. The principle of audi alteram partem of natural justice was not attracted in the particular circum stances of the cases for there was any requirement of law or service rules that the appellants should have been served with notices for showing cause against the action proposed to be taken against them before passing the impugned order because, firstly, their appointments were ab initio void and unlawful having been made in violation, of the service rules prevalent at the relevant time and, secondly, because they were still probationers in the service at the ` time of their discharge from service. The appointments of the appellants to the posts of Tehsildars were unlawful in view of the provisions contained in Art. 18 (i) of K. S. R. (II) which reads as follows: ‑ Section 18.‑No person: shall be eligible for appointment to any service, class, category, grade or any post borne on the cadre thereof unless he: - (i) Possesses such qualifications and has passed such special tests as may be. prescribed in that behalf by Government ; The reading of the above‑quoted rule which was applicable at the time of the entry of the appellants into service leaves no doubt, whatsoever that a person was not eligible for appointment to a post under Government unless he had passed the special test prescribed for the purpose by the Government. Now we have to see as to whether or not the Government had laid down any special test that was necessary to be passed by a candidate aspiring for the appointment to the post of Tehsildar at the relevant time. The answer to the above question is found to be in the affirmative when we look into the A. J. & K. Revenue Officer Rules, 1970 framed by the Govern ment. The rule 5 of the said Rules is relevant wherein method of recruitment to the revenue Service in the cadre of Tehsildars has been laid down, land‑which is reproduced below: ‑

5. Method of recruitment.‑(1) Recruitment to the service shall be made by the following methods :‑ (I) .. (II) In the case of Tehsildars :‑ (a) ‑Not less than fifty per cent. of the vacancies shall be filled by initial recruitment on the basis of competitive examination to be conducted by the Commission ; From the above‑quoted rule it becomes quite clear that the initial recruit ment to the post of Tehsildar was required to be made on the basis of compe titive examination which means that special test prescribed by the Govern ment for a candidate for the posts of Tehsildar was a competitive examination, the passing of which was a condition precedent to his appointment to the said post. Although the aforesaid service rules are not statutory in nature yet certain provisions in them such as laying down the qualification and special tests required to be possessed and passed respectively by a candidate for an appointment to any particular post in the said service are quite legal and enforceable for the Government had the power to prescribe such qualification and special test under Article 18 (i) of the K. S. R. Vol. II. There is no dispute about the fact that the appointments of the appellants were not made on the basis of any competitive examination and a matter of fact no such competitive examination was ever held before making their appointments. This being the case the appointments of the appellants as Tehsildar lacked legal sanction behind them and were, conse quently void ab inito and unlawful as the same were made without fulfilling the necessary requirements of the aforesaid Article of K. S. R. Such unlawful appointments did not confer any vested rights in the appellants which are normal incidents of regular service under Government with the result that they have no cause of complaint if their services have been terminated by the Government without any previous notice of showing cause. In this view of the matter they have no right of appeal before this Tribunal as it is only a civil servant aggrieved by the order of the competent authority made in respect of the terms and conditions of his service who has been given a right of appeal before Service Tribunal under section 4 of the Service Tribunals Act. 1975. The appellants are not aggrieved by the impugned order as no legal grievance can be said to have arisen out of it because, as stated earlier terms and conditions enjoyed by a regularly and lawfully appointed civil servant: were not available to them. Even if it is assumed for the sake of arguments that the appellants were regular and, permanent appointees to the Revenue Service in the cadre of Tehsildars still they were liable to be discharged from the service without giving them show‑cause notice for they were still probationers in the service at the time of making the impugned order. When the appellants were discharged from service the A J & K Civil Servants (Appointment and Conditions of Service) Rules framed by the Government in pursuance of rule 23 of the Act had come into force. The rule 7 (i) of the said Rules prescribe the period of probation of a person appointed to a service and reads as under: ‑ Section 7 (1).‑A person appointed to a post in a grade against a sub stantive vacancy shall remain on probation for a period of two years, if appointed by initial recruitment, and for a period of one year if appoint ed otherwise ; provided that the appointing authority may extend the period of probation by a further period not exceeding two years in all. It is obvious from the rule reproduced above that every initial appoint ment to a post in Government service is made on a probation for a period of at least two years. The appellants were still probationers at the time of making the order impugned in these appeals because period of two years has not yet elapsed since their appointments. Therefore, being probationers in, service no show‑cause notice was necessary before terminating their services in view of section 10 of the Act which governs the terms and conditions of the civil servants. The above‑referred section of the Act is to the following effect: ‑‑ Section

10. Termination of service.‑The service of a civil servant may be terminated without notice. (d) during the initial or extended period of his probation : Provided that, where such civil servant is appointed by promotion on probation or, as the case may be, is transferred and promoted on probation from one grade, cadre or post, his service shall not be terminated so long as he holds a lien against his former post, grade, or cadre and he shall be reverted to his former grade, or as the case may be, cadre or post. Even under the previous service rules which were in force at the time of the appointments of the appellants an appointee to a service was compulsorily required to be on probation for a period of two years in such service. In this connection Article 20 (a) of K. S. R., Vol. II is relevant which reads as f follows: ‑ Article 20.‑(4) Except as otherwise provided for by special orders of Government, no person shall be eligible for confirmation as a member of a service, until he has been on probation in such service Continuously or in the aggregate for a period of 2 years Provisions of rules referred to above leave no doubt that at the time of their discharge from service the appellants were probationers in service' both under the previous rules as well as under the new rules. Their services therefore, could be terminated by the Government in exercise of the power vested in it under section 10 of the Act and in their cases the principle of natural justice that "No one should be condemned unheard" did not COMIC, into play for the reason that it has no application where right to show cause has been specifically taken away by an enactment under which an action is taken against a person. We have already held in case entitled Surbland Khan v. A. K. Government and others (1980 P L C (C. S.) 400y) that: ‑‑ "There can be no dispute with the general propositions of law established by numerous judicial pronouncements of Superior Courts made in recognition of the aforesaid principle of natural justice that it is imperative to provide a person to be proceeded against with an opportunity of showing cause against the action proposed to be 'taken against him which is likely to adversely affect this right in person or property but at the same time there is equally well‑established exception to it that where a provision in an enactment under which action is proposed to be taken expressly excludes the requirement of the show -cause notice to be given to a person proceeded against, then above said principle of natural justice is not attracted and an order made to his disadvantage without a show‑cause notice does not suffer from an infirmity rendering the same unlawful or of no legal effect." Similar view was taken by us in another case entitled Mir Abdul Qayyum v. A. K. Government and others (1980 P L C (C. S.) 400a). For the reasons stated above no illegality or irregularity can be attributed to the Government respondent in passing impugned order terminating the services of the appellants without serving any notice upon them of showing cause as their period of probation‑ having not expired at the time of their discharge from service the right to show cause stood taken away by an express provision of law referred to above. The power of the Government either to undo an illegal and unlawful appointment which does not confer any service rights on such appointee or to discharge a probationer from service are unfettered, the exercise of which is not contingent upon any recommendations of the Public Service Commission. The Government was quite competent to remove the appellants from service even without any recommendation from Public Service Commission. Thus if the cases of appellants are examined in the light of the above legal position no infirmity is found in the impugned order on the ground of its having been made on the basis of the recommendations of Public Service Commission, the legality of whose own composition was not beyond doubt. For the foregoing reasons we find no merits in both these appeals which are accordingly dismissed with no order as to costs. The parties be informed of this order. A copy of this judgment be placed on the file of other appeal. KHAWAJA GHULAM QADIR (MEMBER).‑I agree. Appeal dismissed.