1984 PLP (C (PLC(CS))

KH. ABDUS SAMAD (MEMBER).‑The appellant has filed this appeal finder section 4 of Azad Jammu and Kashmir Service Tribunals Act, 1975 ,against the orders No. Admn/13865‑79,/SO‑III/80, dated 28th August, 1980 and No. Admin/A‑I (26)/18625‑33, dated 20th September, 1981 passed by respondents. BY virtue of this appeal he Prays for setting aside the above‑impugned orders and restoration to his original, substantive post of Deputy Secretary, Legislative Assembly Azad Jammu & Kashmir in Grade‑

18. The facts leading to this appeal are that the appellant was initially recruited as Deputy Secretary Legislative Assembly in Grade‑18 N P S vide order No. dated 5th March, 1975. No condition was attached with this recruitment (Annexure A). He performed his duties satisfactorily and in the meanwhile the post of Deputy Secretary Legislative Assembly was upgraded on the principle of party with the Punjab Province (Pakistan) from Grade‑17 to Grade‑18, and the appellant was put in this very grade with special pay/allowance. The appellant attended N. I. P. A. training and passed the same training with good results. On 28th August, 1980 he was reverted to the post of Section Officer in Grade‑17 vide order para. 4 (Annexure B) and be challenged this order through review petition (Annexure C). This review petition was rejected by respondent No. 1 on 20th September, 1981 vide order para. 5 (Annexure D). As a result of this the appellant has challenged the above orders on many grounds. The main grounds of his appeal are that in his initial recruitment order it was nowhere provided that his appointment will be referred to Public Service Commission and on this very ground he has alleged that the respon dent was not competent to change the terms and conditions of his service. This action of the respondent is illegal and not binding upon the appellant. His initial appointment was made as Deputy Secretary in Legislative Assembly Azad Jammu & Kashmir by the respondent and according to Interim Constitution Act, 1974 (section 30‑C) the Secretariat of Azad Jammu & Kashmir Legislative Assembly is quite separate and the Civil Servants of Azad Jammu & Kashmir Assembly are governed by AJK Legislative Assembly Secretariat (Recruitment, Terms and Conditions) Act, 1976. The recommendations of the Public Service Commission regarding his reversion and posting in Grade‑17 is also void ab initio and this action against appel lant as pleaded by him cannot be sustained and he prays for restoration to this substantive post of Deputy Secretary in Grade‑18 with special pay Rs. 275 and other emoluments. Sardar Rafique Mahmood Khan, Additional Advocate‑General, counsel for the respondents has supported the impugned orders. In his written statement he has admitted in para. 3 that Assembly Secretariat is not part of Civil Secretariat and Public Service Commission according to Ordinance, 1978 was directed by the Government to probe into appointments, promotions made by predecessor Government on 24th August, 1974 or after that. Such matters were referred to P. S. C. for determining the suitability of such Civil Servants. As such the, matter of appointment of appellant was also referred to P. S. C. His appointment in Grade‑18 was not approved by the P. S. C. and he was recommended for appointment against any post in Grade‑

17. Besides the recommendation of P. S. C. no direct appointment on the basis of parity can be made to the post of Deputy Secretary. These reasons according to the respondents resulted in the reversion of appellant. In support of his appeal the appellant examined Mahboob Khan Senior Superintendent of Examination of F'. S. C., Zahoor Ahmed, Assistant, Services and General Administration Department and Mr. S.D. Natal, Sec tion Officer. The respondents did not produce any evidence. Mr. Mahboob Khan appellant's witness deposed that he has produced photostat recommendations of P. S. C. regarding Ghulam Ahmed Abbasi. These recommendations appear Exh. A/A and AA/B, besides these recommendations he produced other attested true copies Exh. AC/1 other record regarding other officers approved by the P. S. C. In his knowledge there is no other example where any officer has been approved for a lower grade from the higher grade attached to that post. The attested true copies Exh. A, D, F, AD/2, Exh. AB, AA, AC and Exh. AE show that Mr. Muhammad Arif Abbasi, Deputy Director, Food Department Mr. Sakhi Zaman Executive Engineer Grade‑18, Iftikhar Ahmed Abbasi Deputy Secretary Grade‑18 being direct recruits were approved by the P. S. C. vide Exh. A.B. and the fate of appellant was decided on 30th December, 1978 and 17th July; 1978 by the P. S. C. It was decided by the P. S. C. that the matter of appellant was covered by rule 4, sub‑clause (i) of Rules of P. S. C. and as a matter of principle the post of Deputy Secretary was to be filled in by advertising the said vacancy. Since the post of Deputy Secretary cannot be advertised under rules, so the direct appointment of the appellant to the said post cannot be judged by the P. S. C. On 30th December, 1978 (Exh. AB) the P. S. C. was of the opinion that the appointment of appellant as Deputy Secretary cannot be approved, but on the basis of his 3 years' previous satisfactory work/service record he was found suitable for any post in Grade‑

17. So the Commission recom mended his adjustment in Grade‑

17. As deposed by Mr. Mahboob of P. S. C. a different view has been taken against direct recruits as referred above and the other 2 witnesses of the appellant have produced record concerning the appellant. The learned counsel of the parties have argued this appeal and we have gone through the record and considering this appeal as a whole we shall refer to the arguments of the parties counsel. The appellant's counsel has contended that the appellant was recruited directly by the respondent without attaching any conditions to his service, Initially he was put in Grade‑17 and later on the post of Deputy Secretary Legislative Assembly was upgraded on the principle of parity. On the basis of satisfactory work the appellant was promoted to Grade‑

18. The recommendations of P. S. C. resulted in reversion of the appellant acid it is contended by the appellant's counsel that the P. S. C. was not competent to decide the question of grades. Under Interim Constitution, 1964, section 30(c) brought about a separate Assembly Secretariat in Azad Kashmir and the relevant Act of 1976 regarding Assembly Employees was enforced. By virtue of this Act the Speaker of the Assembly was the competent authority for making appointments in Grade‑17 and above. The opinion of the P.S.C. is not relevant vis‑a‑vis the terms and conditions of the appellant. The recommendation of the P. S. C. is not binding on the appellant and the same amounts to unheard condemnation. The principle of natural justice demanded show‑cause notice and sufficient opportunity of explaining his position. The appellant apparently has been denied this fundamental right by the respondents. The recommendation of P. S. C. has been challenged on other grounds also f. e., these very recommendations were kept in abeyance for 2 years by the Govt. and abruptly the order of reversion dated 28th August, 1980 was passed by the Government. According to appellant's counsel this action is mala fide and is liable to be vacated. Finally the appellant's counsel has laid great stress on section 30 (c) of Interim Constitution Act, 1974, sections 5, 8, 10 of A. J. K. Legislative Assembly Secretariat Recruitment Act of 1976. In this connection he has also referred to section 9 of Ordinance, 1981 and thereby contended that the P. S. C. was competent to judge the fitness of persons appointed to posts in Grades‑16 and 17 at any time between 24th August, 1974 and 8th May, 1977. The above facts of the case show that the appellant was initially recruit ed as Deputy Secretary in Grade‑17 for Legislative Assembly Secretariat on 5th March, 1975 vide (Annexure X11). On 27th October, 1975 the appellant was put in Grade 18 with special pay Rs. 275 p. m. w. e. f. 6th March, 1975 (The date be took over as Deputy Secretary Assembly). The P. S. C. under Ordinance of 1981 had to report to the Government about the fitness under section 9, sub‑clause (B) & (C) and in this regard it is clear that this report was meant for only civil servants holding posts in Grades 16 and

17. It is admitted by the respondent's counsel that the appellant was working in Grade‑18 and we refer to written statement of respondent's counsel where the following assertion makes it clear that the appellant was put in Grade‑18 on 6th March, 1975. The relevant orders as referred above are complete in all respects and the P. S. C. did not approve the initial recruitment of the appellant in. Grade‑18 whereas other direct recruits M. Iftikhar Ahmed Abbasi and Mr. Sakhi Zaman X. E. N. and Muhammad Arif Khan were approved. These 3 Officers are direct recruits and their case is quite identical with Mr. Ghulam Ahmed Abbasi, the present appellant. According to section 30 (c) of Interim Constitution Act, 1974 the Assembly Secretariat is quite separate and is applicable to the recruitment and conditions of service of persons appointed to the Secretariat staff off the Assembly only. It is again admitted that appellant was recruited in 197' i.e. after the promulgation of Interim Constitution Act, 1974. The Azad Jammu and Kashmir Legislative Assembly Secretariat (Recruitments, Terms and Conditions) Act, 1976 also relates to the terms and conditions of service in the Assembly Secretariat. .To explain the same position of the appellant his counsel has relied on sections 8 and 10 of the above act and thereby repeating his contention that the Speaker of Legislative Assembly is empowered to recruit Officers to posts in Grade‑17 and above and so, the impugned order is liable to be vacated. In support of his above contentions the appellant's counsel has referred to P L D 1958 Kar. 35, P L D 1982 S C (AJ&K)124,PLD1979AzadJ&K47,PLD1979S‑" (AJ&K)123, P L D 1957 Kar. 685 and P L D 1981 Azad J & K

71. The learned counsel for respondent has very frankly conceded that the reversion of the appellant by the Government is not warranted on the grounds that Ghulam Ahmed Abbasi was a direct recruit of the Assembly and impugned order without show‑cause notice cannot be sustained. Reversion as ordered by the Government with regard to appellant is violative of fundamental rights as available to the Civil Servants under Interim Constitution Act of 1974. The P. S. C. was not competent under Ordinance, 1981 and that also only to the extent of appointments made by promotion to posts in Grades‑16 and 17 on 24th August, 1974 and 8th May, 1977. It is admitted that the appellant was a direct recruit and the terms, promotion do not appear in his initial recruitment order dated 5th March, 1975 and upgrading of the post of Deputy Secretary in Grace‑1 Q w. e. f. 6th March, 1975. In the light of the above discussion, we are of the confirmed view that the appeal is liable to succeed. We, therefore, proceed to accept the appeal declare the impugned order as void ab initio and of no legal effect, and direct that the appellant be restored to his original substantive post with consequential benefits under rules. However, there will be no order as to costs. Parties be informed accordingly. SARDAR MUHAMMAD ASHRAP KHAN (CHAIRMAN).‑I agree with my learned brother Kh. Abdul Samad, that orders impugned in this appeal are not sustainable and are liable to be set aside .but I would like to add few passages of my own in support of his above conclusion. It is undisputed that the appointment of the appellant to the post of Deputy Secretary in the Legislative Assembly was made directly by initial recruitment and he had been working as such until the passing of the impugned order of his reversion from the said post to Grade‑17 in the National Pay Scale and his posting as Section Officer in the Finance Depart ment of the Azad Jammu and Kashmir Government. In my view, the appellant being an employee of the Secretariat of the Legislative Assembly, the Government was not competent to deprive him, of his appointment in the said Secretariat and to revert him to a lower grade and post him in the civil Secretariat of Azad Jammu & Kashmir Government, under the law applicable to him. Under section 30 (c) of the Azad Jammu & Kashmir Interim Constitution Act, 1974, the Assembly shall have a separate Secre tariat and may by law, regulate the recruitment and conditions of service of person appointed to its Secretariat staff. The Assembly in exercise of the powers vested in it under the above provisions of the Constitution has made a law called Azad Jammu and Kashmir Legislative Assembly Secretariat (Recruitment, Terms and Conditions) Act, 1976 (hereinafter referred to as Assembly Secretariat Act) regulating the appointment, terms and conditions of service of persons in the Secretariat of Azad Jammu and Kashmir Legislative Assembly and to provide for matters connected therewith or ancillary thereto. According to section 10 of the Assembly Secretariat Act, the appointment to all posts in Grade‑17 and above shall be made by the Speaker of the Legislative Assembly. Thus as the said Act was in force at the time of making the impugned order of reversion of the appellant, it was only the Speaker who was empowered to make the same inasmuch as he was his (appellant's) appointing authority but as is quite evident from the impugned order itself it was not the Speaker of the Legislative Assembly but the Government which had reverted him from the post of Deputy Secretary, Legislative Assembly in Grade‑18 to Grade‑17 on the recommendation of the Public Service Commission and transferred and posted him as. Section Officer in the Civil Secretariat. No order of removal from service from the post held by him in the. Assembly Secreta riat or his reduction to the lower grade and transfer and posting in the Civil Secretariat of the Government could be lawfully made by the Govern ment because the appellant was not a Government servant but an employee A of the Legislative Assembly which enjoys constitutional entity quite distinct from the Government of Azad Jammu & Kashmir under the Constitution Act with the result that either of the above two institutions cannot make any order in respect of the person in service of the other. Even if, it is assumed for the sake of arguments that the appellant was at the relevant time in the service of the Azad Kashmir Government and as such the Government was competent to revert him, the impugned order of his reversion was still unwarranted by the prevalent law which empowers the Government to revert a civil servant. The terms and conditions of a civil servant are provided in Azad Jammu & Kashmir Civil Servants Act, 1976 (hereinafter referred to as Civil Servant Act)., Sections 10, 11 & 12 (a) of the Civil Servants Act deal with the reversion of a ‑civil servant from the .higher to lower post or grade. Under section 10, a Civil Servant appointed by promotion on probation or transferred and promotee on probation from one grade or post is liable to reversion to his former post or grade without notice while under section II of the said Act a civil servant appointed to a higher post or grade on ad hoc o officiating basis shall be liable to reversion to his lower post or grade without notice. Again under section 12 (a) of the Civil Servants Act, a civil servant appointed or promoted during the period from 16th April, 1975 to 11th August, 1977, may be removed from service or reverted to his lower post or grade, as the case may be, without notice by the President or a person authorised by him in this behalf. Except under the above provisions o1 law, a civil servant is not liable to reduction in rank, status or grade without show‑cause notice as such reversion adversely effects him as a person in the service of the Government. The provisions of the Civil Servant Act referred to above which vests in the Government or the President, the powers to revert a civil servant from higher to a lower post or grade were not attracted in the case of the appellant. He was neither appointed to the post of Deputy Secretary Legislative Assembly by promotion on probation or on ad hoc or officiating basis but stood substantively appointed to it Similarly his appointment had taken place before 14th April, 1975 thereby bringing his case outside the purview of section 12 (a) of the Civil Servants Act in this case, no show‑cause notice was issued to the appellant before removing him from his post and reverting him to the lower grade. For this reason alone the above order is unlawful. Apart from the above reason, the appellant's reversion to the lower grade without providing him the opportunity of showing cause against it also offends against the well‑known principle of natural justice contained in maxim `audi alteram portem' i.e. no person should be con demned unheard. The reduction to the lower grade is one of the major penalty prescribed under the Azad Jammu & Kashmir Civil Servant (Efficiency and Discip line) Rules, 1977 that can be imposed on a civil servant in disciplinary proceedings against him and such a penalty cannot be awarded without first initiating disciplinary action against him under the said Rules. The above Rules were applicable to the appellant by virtue of provisions of section 12 of the Legislative Assembly Act but the appellant's reversion to lower grade was effected by the Government without having recourse to the disciplinary proceedings against him under the said Rules which even contain a mandatory provision in terms of its rule 6 (3) for at least serving a show‑cause notice on the accused civil servant before imposing any penalty on him. Therefore, the impugned order is illegal and unlawful on the ground of its having been made without resorting to disciplinary proceedings against the appellant. There is yet another important aspect of the case which cannot be lost sight of while dealing with the question of the validity or otherwise of the impugned order of reversion of the appellant to lower grade post. The: question of reversion of civil servant from a higher grade to the lower grade can only arise if he held any appointment to any such post of lower grade before his appointment to the higher grade post from which his reversion is sought but the law does not contemplate' his reversion to the post lower in grade to which he was appoin ted by initial requirement. It is an admitted fact that the, appellant's initial appointment was made directly against the post of Deputy Secretary Legislative Assembly and thus one fails to see how he' could be reverted from the said post to the one which was lower in grade and status. He could be removed from the said post by way of discharge of dismissal from service but could not be reverted from it to some other lower grade post. From the record of the case, it appears that the case of the appellant was referred to the Public Service Commission in pursuance of section 9 (a), of the Azad Jammu & Kashmir Public Service Commission Ordinance, 1978 for assessing his suitability for appointment to the post of Deputy Secretary Legislative Assembly, as his appointment to the said post was made without reference to the Public Service Commission. The said Com mission expressed its inability to approve the appellant's appointment to the said post on the ground that he was not eligible for such an appointment in view of the provisions of Punjab Civil Secretariat Rules, Punjab Legis lative Assembly Secretariat Rules and Azad Kashmir Civil Secretariat Rules according to which no initial recruitment could be made to the post in Grade‑

18. Under the above provisions of the Public Service Commission Ordinance, if a person recruited to any post is not found suitable to hot it by the Public Service Commission on reference made to it by the compe tent authority then be is only liable to be discharged from service and the power to revert hint is not enjoyed by the competent authority. The reversion of the appellant is, therefore, also bad in law as the same could not be made under section 9 (a) of the said Ordinance under which it pur ported to have been made. For the reasons stated above, the impugned orders No. Admn/13865 79/S.O. III/80, dated 28th August, 1980 and No. Admn./A‑I (26)/18625‑33 dated 20th September, 1981 made by the Government are set aside with the result that the appellant shall stand resorted to the post of Deputy Secretary Legislative Assembly with effect from the date of his reversion from the said post with all back benefits. A. E. Appeal accepted.