2000PLC(C (PLP)

Secretary to Prime Minister v. Muhammad Aslam and others Civil Appeal No. 24 of 1999; Muhammad Sharif Khan v. Mirza Fazal Hussain and others 1993 SCR 88 and Muhammad Ajaib v: Public Service Commission and 3 others 1997 PLC (C.S.) 222 ref. Farooq Hussain Kashmiri for Appellant. Mujahid Hussain Naqvi for Respondent. Date of hearing: 1st February, 2000. BASHARAT AHMAD SHAIKH, J.‑‑‑Facts of the case are that respondent Muhammad Siddique Haiden was appointed as a Photographer/Cameraman in Department of Public Relations on 23rd February, 1991 during a leave vacancy by relaxing the relevant departmental rules relating to qualifications for eligibility. Subsequently the post he was holding became vacant due to the retirement of its incumbent. The Prime Minister of Azad Jammu and Kashmir relaxed the restriction on fresh appointees which made it possible for the Director of Public Relations to appoint the respondent as a Photographer/Cameraman , against a clear vacancy. It is mentioned in the appointment order issued on 3rd October, 1992 that the condition about qualification had already been relaxed when the respondent was appointed against the leave vacancy. On 11th October, 1992 the Director‑General issued another order which was to the effect that the appointment order issued on 3rd October had the approval of the Departmental Selection Committee. However, respondent was not given B‑14 which was prescribed for the post but was placed in B‑

8. On 14th October, 1996 the respondent was granted B‑14 on the recommendation of the Departmental Selection Committee. On 6th July a Government order was issued under which all the orders mentioned above were cancelled from the date of issue on the stated ground that they had been manoeuvred as a result of tampering.

2. A writ petition filed by the respondent has been accepted on the ground that the order of removal was passed without giving opportunity of hearing to the respondent. The High Court has held that even if it was found that the respondent had been inducted in service without following the rules and regulations it was still necessary to issue notice before passing the order of removal from service. The High Court has ordered the restoration of the respondent to his post with all benefits.

3. The Government has filed this appeal with leave of the Court. In support of the appeal Mr. Farooq Hussain Kashmiri vehemently contended that the respondent was appointed as Cameraman initially in a leave arrangement and was subsequently absorbed in service in violation of the Departmental rules. It was submitted by the learned counsel that although it is stated in the order of 11th October, 1992 that the appointment order of the respondent was made on the basis of a recommendation of the Departmental Selection Committee but the facts is that the post was not advertised. It was contended that rule 17 of the Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977 lays down that all posts in grade one and above shall be duly advertised to invite applications from desiring candidates. According to the learned counsel this rule has been held to be mandatory and it has also been held that if a post is not advertised the recommendation of a Selection Committee/Board have no legal value. On this point Mr. Farooq Hussain Kashmiri relies on unreported judgment of this Court Civil Appeal No.24 of 1999, decided on 6th July, 1999 titled Secretary to Prime Minister v. Muhammad Aslam and others. It was further contended that in any case the respondent was not entitled to the equitable relief under writ jurisdiction because he had been illegally inducted in service. He relies on Muhammad Aslam's case on this point as well.

4. The learned counsel for the respondent, Mr. Mujahid Hussain Naqvi, vehemently contended that there was serious allegation against the respondent that he had been guilty of tampering and such finding can only be' given after proper inquiry. He, therefore, contended that the High Court had rightly restored him to service. Mr. Mujahid Hussain Naqvi also submitted that there is no material on the record to show that the post had not been advertised before it was referred to the Selection Committee. He relied on the case reported as Muhammad Sharif Khan v. Mirza Fazal Hussain and others (1993 SCR 88) and Muhammad Ajaib v. Public Service Commission and 3 others (1997 PLC (CS) 222). The learned counsel submitted that in absence of an affidavit from the other side it has to be accepted as correct that the respondent was inducted in service on regular basis after fulfilling the legal requirements.

5. In our view the High Court has rightly quashed the order by which the services of the respondent have been terminated. There is serious allegation in the aforesaid order that there was tampering in the record due to which the respondent was able to get himself absorbed in service on regular basis and was also able to secure his promotion to B‑14 from B‑

8. These allegations are of serious nature which would have the effect of attaching a permanent stigma. 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.

6. However, the High Court has restored the respondent to service with benefits but has not allowed the competent Authority to proceed in the matter afresh. This cannot' be approved because where' there is serious allegations like tampering of record it becomes necessary that the matter should be properly investigated and a person accused of such behaviour cannot be allowed to escape on technical grounds. Therefore, this appeal has to be partly accepted in order to allow the competent Authority to proceed in the matter after giving opportunity of hearing to the respondent. Appeal is, therefore, partly accepted and it is ordered that‑ the judgment of the High Court will be maintained but the competent Authority I will be free to proceed against the respondent by giving him opportunity of hearing. H.B.T./5/SC(AJ&K) Order accordingly