1980 PLP (C (PLC(CS))

9. Since no fresh Rules of Business seem to have been made under the Act for carrying out its purpose, therefore, the previously made rules called "The Rules of Business, 1975" made under the Azad Jammu & Kashmir Interim Constitution Act, 1974, shall be deemed to have been made under the Civil Servants Act, 1976, as provided under sub-clause (2) of section 23 of the Act as referred to above.

30. Rule 20 of the 'Rules of Business, 1975 empowered the Government to constitute Selection Boards in the following words :‑‑ Rule

20. Selection Board.‑‑(1) Government may constitute one or more Selection Boards and specify the appointments and promotions to posts other than those to be made on the advice of the Public Service Commission, to be made on the advice of such Selection Boards. (2) If in any case, a Department does not propose to accept the advice of the Selection Board in regard to a matter in which its advice is required under sub‑rule (1), the case shall be returned to the Selection Board for reconsideration, the difference still persists, the case shall be submitted to the Prime Minister through the Services and General Administration Department for his orders.

11. In exercise of the powers vested in it under rule 20 of the Rules of Business the Government vide Order No. S. & G. A. D./1275‑1325/75 dated 17‑4‑1975 constituted a Selection Board entrusting the function of making recommendations in certain cases or promotions which order is reproduced below :‑ "In exercise of the powers vested in him under rule 20 (1) of the Rules of Business, the President, Azad Government of the State of Jammu & Kashmir is pleased to constitute a Selection Board with its composition as under :‑

1. Chief Secretary. Chairman

2. Secretary Home. Member.

3. Secretary Revenue Member

4. Secretary Services and General Adminis tration. Member

5. Secretary Law. Member. (2) This Board shall recommend cases of promotion from junior Class I to Senior Class I and from Senior Class I or any higher post or pay scale to any higher post or pay scale. (Sd.) Secretary, S&GAD

12. No other Selection Board seems to have ever been constituted for recommending the cases of promotion of Officers below the status of Junior Class I as the appellant also does not rely on such other Board in his case. Now critically examining the case of the appellant in the light of the foregoing provisions of law and Rules as applicable to him at the relevant time there remains not an iota of doubt that the appointment of appellant by promotion to the post of Deputy Director Industries was matter of promotion to Senior Class I and such an appointment could termed as on regular basis only if the same was made in the prescribe manner on the recommendation of Selection Board as laid down in the Government Order No. 1275‑1325/75 dated 17‑4‑1975 and not otherwise. As a result an appointment which is not made on regular basis as defined earlier would amount to an ad hoc appointment by promotion as defined under clause (a) to subsection (1) of section 2 of the Civil Servants Act alluded to earlier.

13. He appointment by promotion of the appellant as Deputy Director was made subject to the recommendations of Selection Board correctly as regular appointment could be made only on tire recommendation of the Selection Board under the prevalent rules as clarified above vesting legal rights in the appellant in respect of his terms and conditions of service enforceable at law. In other words unless and until the appointment of the appellant was regularised on the recommendation of Selection Board the status of the appellant remained that of an ad hoc, temporary or officiating appointee all along as appointment having been made otherwise than in accordance with the prescribed method and no show‑cause notice was required to be served upon the appellant before making the impugned order.

14. Having thus determined the legal status of the appellant as ad hoc promotee now we proceeded to consider if in the case of his reversion the appellant can successfully contend that his reversion was illegal and ultra vires as the impugned order was passed without affording him an oppor tunity of being heard in clear disregard of any law, rule or principle of natural justice which principle in various judgments of superior Courts is held always to be read into a statute, law or rule unless expressly dispensed with by the relevant law or rule itself.

15. Since the terms and conditions of civil servants in Azad Kashmir are governed by the Civil Servants Act, 1976, the Act itself provides in section 11 the method how an ad hoc or officiating appointee shall be dealt with. Section 11 of the Act reads as under :‑ "Section

11. Reversion to a lower grade or service.‑A civil servant appointed to a higher post or grade on ad hoc or officiating basis shall be liable to reversion to his lower post or grade without notice."

16. Now as shown above the law itself has expressly taken away the a fight of show‑cause notice in the case of a person who holds any appoint ment on ad hoc or officiating basis with the result that the principle of natural justice enshrined in the maxim `audi alteram partem' is rendered inapplicable in such cases and an ad hoc or officiating appointee can rightly and legally be reverted without any notice to him.

17. In the face of this legal position of the case of appellant we are constrained to differ with the learned counsel for the appellant that the impugned order was bad in law as the appellant was condemned unheard and, in consequence, we are of the firm view that no show‑cause notice before passing the impugned order of reversion was necessary as the same was done away with by the law itself in express words. Even if for arguments sake it be said that the appellant was holding the post not as an ad hoc appointee but as an officiating even then the appellant has no case as the status of an officiating officer is in no way different than that of an ad hoc appointee so far the requirement of show‑cause notice is concerned. As such all the citations referred to by the learned counsel for the appellant have no application to the appeal in hand as, in contrast to this case, the question of an ad hoc appointment was neither involved nor considered in these rulings and thus are distinguishable to this extent. Some of these rulings only go to establish and confirm that where a legal right vests in any civil servant under any law and the right of being heard is not taken away expressly by the same law then the aggrieved civil servant shall in no case be punished or condemned unheard in violation of the principle underlying the main `audi alteram partem' which is not the case of the appellant as previous to his reversion no legal right of any sort had ever vested in him under any law.

18. The next objection of the appellant to the validity and legality of the impugned order as raised in the memorandum of appeal and also relied upon in his arguments by the learned counsel of the appellant is that since the promotion order of the appellant was later confirmed by the Prime Minister of Azad Kashmir so the order in question had acquired finality and was irrevocable thereby vesting a right of permanent promotion in the appellant.

19. We do not feel convinced by this argument for the appellant too because, as discussed above in detail, the only competent body or authority to recommend the promotion of an officer to a post falling in grade 18 (Senior Class I) or above was the Selection Board appointed by the Government vide order No. S&GAD/1275‑1325/75 dated 17‑4‑1975 referred to in an earlier paragraph and no other authority could legally recommend promotion of art officer to such a post. It was in view of this legal position that the promotion of the appellant was made subject to the recommendations of the Selection Board otherwise reference could easily have been made to Public Service Commission. In other words Public Service Commission was in no way competent or concerned to recommend the case of appellant for promotion to Senior Class I post, i.e. (Grade 18). If in the presence of this legal position the Prime Minister happened to direct that the post of Deputy Director Industries be advertised by the Public Service Commission who shall select and recommend any suitable person for the said post and the Commission accordingly selects and recommends any person for the that does not mean that the direction of the Prime Minister and conquest selection of the Public Service Commission and confirmation by the Prime Minister of .the appellant in clear diregard of the Government Order acquired legal status and became valid without any amendment of the Government Order dated 17‑4‑1975 quoted above. An order which is legally wrong and incorrect can never vest or create any right enforceable in law and thus confirmation of the promotion order of appellant by the Prime Minister in pursuance of recommendation of Public Service Commis sion does not validate the promotion of the appellant or vest any valuable right in the appellant as may be enforced through a Court of law or Tribunal. Apart front it the order of Prime Minister regarding confirmation of the appellant as Deputy Director was never given effect to or carried out and as such original order of promotion of the appellant remained intact which was later rescinded by reverting the appellant to his substantive post.

20. In this view of the matter the contention of the learned counsel far the appellant is repelled as being without any force or substance.

21. The last argument of the appellant was that the impugned order was mala fide and illegal. We have not been able to find any mala fide from the record and the learned counsel for the appellant has also not been able to point out any such mala fide of the respondent. As a result this contention of the appellant also falls to the ground as baseless.

22. For the reasons stated above we find no merit in this appeal which a dismissed with no order as to costs.

23. The parties be informed of this order. SARDAR MUHAMMAD ASHRAF KHAN (CHAIRMAN).‑‑I agree.