2001 PLP (C (PLC(CS))

BASHARAT AHMAD SHAIKH, J.

Appellant Naziran Bibi was serving in the Health Department as Midwife (Daya). When she had already served for about nine years, her services were terminated for absence from duty. On the intervention of the Mohtasib she was re-appointed on 25th April, 1996 against a vacancy which was likely to occur with effect from 1st June. However, seven months later her appointment was cancelled on 7th July, 1997 to pursuance of a Cabinet decision taken on 1st September, 1996 that all appointments made during the election campaign were illegal and shall he cancelled. Mst. Naziran Bibi filed a writ petition to challenge the order of her removal from service on 22nd April, 1998 being Writ Petition No. 165 of 1998. She pleaded that her appointment was not hit by the Cabinet decision because the said decision was made only in respect of those appointments which had been made between 2nd May, 1996 to 30th June; 1996 while her appointment was made on 25th April, 1996. A learned Judge in the High Court (Muhammad Sadiq Farooqi, J.) upheld the contention of Mst. Naziran Bibi that her appointment did not come within the mischief of the Cabinet decision. The order of termination of Mst. Naziran Bibi's services were consequently set aside.

2. Respondent No.3 Mst. Rashida Akhtar filed a writ petition in the High Court on 4th December, 1998 being Writ Petition No.528 of 1998, in which, apart from the official respondents, Mst. Naziran Bibi was impleaded as a respondent. She stated that she was duly appointed as Midwife (Daya) in Basic Health Unit Mirpur Tehsil Athmuqam on 15th February, 1998 and she joined service on 1st March, 1998. She averred in the writ petition that she was discharged from service on 28th November, 1998 so that Mst. Naziran Bibi be reinstated in service in light of the judgment of the High Court. Her services were terminated on the ground that she (Mst. Rashida Akhtar) was the junior most Midwife in Muzaffarabd District. She submitted that Government order, dated 9th February, 1994 had laid down the rule that posts under the Azad Government of Jammu and Kashmir falling in Basic Pay Scales 1 to 5 shall be recruited from the respective constituencies on the basis of merit. It was contended or: her behalf that she belonged to Athmuqam Constituency while Mst. Naziran Bibi was a domicile of Khum Dhrang, Shaukat Lines, Muzaffarbad City falling in Legislative Assembly Constituency of Muzaffarabad. It was therefore, contended that in order to reinstate into service Mst. Naziran Bibi, the junior most Midwife in LA-1 Muzaffarbad should have been discharged from service. The writ petition has been accepted by a learned Judge in the High. Court (Chaudhry Muhammad judgment pronounced on 4th May, 1999 held that order of termination of services of the petitioner was illegal. It was held that Mst. Rashida Akhtar, respondent No.3, was lawfully appointed by the competent Authority and had been removed from service without legal warrant.

3. Mst. Naziran Bibi has filed this appeal with leave of the Court. It was contended by her counsel, Sh. Abdul Aziz, that Mst. Naziran Bibi was illegally removed from service because the High Court had not passed any order against her, It was claimed that she is senior most amongst the Midwives of the department and has been illegally removed from service. Raja Ibrar Hussain the learned counsel for the District Health Officer and Mst. Rashida Akhtar, contended that it is the junior most Midwife from Muzaffarabad Constituency of the Legislative Assembly who should have been removed from service in order to implement the judgment of the High Court in Writ Petition No. 165 of 1998 filed by Mst. Rashida Akhtai.

4. We have examined the respective contentions of the learned counsel for the parties. The Government Notification of 9th February, 1994 runs as follows:-- "No Admn/SO/6/1111-1261/94. The President Azad Jammu and Kashmir has approved the following:-- Employees in Pay Scales 1 to 5 shall be recruited from the respective Constituencies on the basis of merit. However, in female section of the Education Department Primary Teachers shall be recruited from the relevant Local Council instead of the Constituency. If suitable candidate is not found from relevant Local Council suitable candidate selected on merit shall be appointed from the adjoining Local Council."

5. The Government order reproduced above, being of general application, has binding force. Therefore, the official respondents fell in error in terminating the services of Mst. Rashida Akhtar to make room for reinstatement of Mst. Naziran Bibi. Mst. Naziran Bibi admittedly belongs to Khum Dhrang which falls in Muzaffarabad Constituency. It is not disputed that Mst. Rashida Akhtar is the junior most Midwife in Muzaffarabad District but this was not a valid ground for terminating services. Clearly the appointment of the junior most Midwife from Muzaffarabad Consistency should have been terminated in order to reinstate-Mst. Naziran Bibi.

6. In light of the aforementioned discussion the result which follows is that both Mst. Naziran Bibi and Mst. Rashida Akhtar shall continue in Service and the appointment of the junior most Midwife from Muzaffarbad Constituency shall be cancelled.

7. The appeal is disposed of in the foregoing manner. District Health Officer Muzaffarabad is directed to implement this judgment within a period not exceeding one month. H.B.T./115/SC(AJ&K) Order accordingly.