2002 PLP (C (PLC(CS))

MUHAMMAD YUNUS SURAKHVI, J.‑‑‑This appeal, by way of leave of the Court, has been directed against the judgment passed by the Service Tribunal on 25‑7‑2000, whereby accepting the appeal filed by respondent against his demotion orders was allowed and his promotion orders as Head Constable and thereafter as Assistant Sub‑Inspector were restored.

2. The necessary facts, giving rise to the present appeal, briefly stated, are that Zaheer‑ud‑Din Qureshi, respondent herein, was recruited as Foot Constable/Driver in Reserve Police on 7‑12‑1994. He was promoted as Head Constable on 1‑11‑1995 and subsequently within a period of another three months he was promoted as Assistant Sub‑Inspector on 7‑2‑1996. Subsequently he was demoted back as Constable and both the aforesaid promotions were set at naught on the ground that the same were against the relevant rules. The respondent feeling aggrieved by the aforesaid order preferred an appeal before the Service Tribunal which was accepted on the ground that the demotion orders were made without any inquiry or affording A any opportunity of hearing to the respondent and as such the same were not sustainable. Consequently the orders of the demotion were set aside. It is against the aforesaid judgment of the Service Tribunal that the present appeal has been preferred.

3. Raja Shiraz Kayani, Advocate‑General, the learned counsel for the appellant, vehemently contended that both the promotions of respondent were made during the period of probation which was for a period of three years. He further contended that a promotion cannot be ordered during the probation period and as such the promotions of respondents as Head Constable and Assistant Sub‑Inspector were ab initio void. The learned counsel strenuously argued that as the name of respondent was not brought on the lists "C" and "D" as required under Police Rules, the promotions of respondent could not be made. The learned counsel further contended that a Constable could not be promoted as Head Constable directly but he could only be promoted as selection grade Constable in the first instance. The learned counsel submitted that as the orders of promotion of respondent were ab initio void, there was no question of serving a notice on him before recalling his promotion orders. In the alternative the learned Advocate General urged that even if the respondent was not heard by the concerned authority before his demotion he was duly heard by the Service Tribunal and also by this Court, therefore, it shall be deemed that the demotion orders of the respondent were perfectly valid and there was no necessity of affording him an opportunity of hearing.

4. In reply Mr. Ghulam Mustafa Mughal, the learned counsel for the respondent. submitted with vehemence that the orders of promotion of the respondent lad been acted upon and thus they could not be recalled even if the same were suffering from any legal infirmity. He further contended that even otherwise the respondent could not be condemned unheard. The learned counsel stressed that the orders of demotion of respondent could be set aside on the sole ground that he was condemned without affording him any opportunity of hearing. The learned counsel in support of his contentions relied upon Abdul Khalil v. Manzoor Ahmed and 5 others (1998 PLC (C.S.) 1396), Karachi Port Trust v. Altaf Ahmed and another (1996 SCMR 1205) and Malik Zaffar Ali v. Inspector‑General of Police (1995 SCR 234).

5. After hearing the respective contentions of the learned counsel for the parties and perusing the relevant record, it may be stated that it is an admitted fact that before passing the orders of demotion of respondent by the concerned authority, it did not provide the respondent an opportunity of hearing. Thus the principle of audi alteram partem was violated by passing the orders of demotion of respondent. 'Me respondent was inducted in service as a Foot Constable/Driver in Reserve Police. He was promoted as Head Constable and thereafter as Assistant Sub‑Inspector. After his promotions as Head Constable and Assistant Sub‑Inspector of Police he has been rendering his services as such and had been receiving the emoluments from the concerned department, but all of a sudden he was demoted back as a Constable without affording him an opportunity of hearing which was almost a principle of universal application.

6. In a case reported as Azad Jammu and Kashmir Government .v. Muhammad Siddique Haidri (2000 PLC (C.S.) 714) it was observed by this Court at page 176 of the report in a following manner:‑‑ "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 affect 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." In an unreported case titled Azad Government and others v. Muhammad Munsaf and others (Civil P.L.A. No.65 of 1998 decided on 15‑5‑1998) it was observed by this Court as under:‑‑ I have given due consideration to the matter. It may be observed that irrespective of the fact as to the validity of the aforesaid notification on which the learned counsel for the petitioner relies, the services of the respondents could not be terminated without serving notice upon them. It is well‑settled principle of law that if there is a provision in the relevant law that the services of a civil servant can be terminated without serving any notice upon him, then such notice can be dispensed with and not otherwise; where a law is silent with regard to the service of notice, it cannot be dispensed with. Therefore, the High Court has rightly held that the order of removal of the respondents being violative of rule of audi alteram partem is not sustainable. The principle enunciated in the above cited authorities of this Court clearly postulates that before passing an adverse order against a person or imposing penalty upon him, it is essential to given him a notice for personal hearing and the same cannot be dispensed with unless there is a specific provision in the relevant law that the services of civil servant can be terminated without serving any notice upon him. In a case titled Malik Zaffar Ali v. Inspector‑General of Police (1995 SCR 234) it was held that the promotion order of appellant was conditional iii nature yet the same was acted upon. If the Inspector‑General of Police was of the view that the order may be withdrawn due to some illegality or invalidity he could not do so without giving an opportunity to the appellant therein to show cause against the proposed action , . . . . In a case reported as Karachi Port Trust v. Altaf Ahmed and another (1996 SCMR 1205) it was held by the Supreme Court of Pakistan that person having been appointed on regular basis with six advance increments could not be treated as probationers and even if he was a probationer, unsatisfactory conduct could not be made basis for terminating the probation without resorting to show‑cause notice procedure and inquiry as required under Government Servants (Efficiency and Discipline) Rules, 1973. It was also observed that the latter position is also affirmed by Muhammad Siddique Javed Chaudhry v. The Government of West Pakistan (PLD 1974 SC 393). In a case reported as Hussain Ahmed Islahi v. Azad Government and another (1992 SCR 370) it was observed that the appellant was not given opportunity of personal hearing which was a mandatory requirement. Order of major penalty was declared illegal and invalid.

7. The argument advanced by the learned Advocate‑General that the promotion orders of respondent were made Within a span of a few months when the respondent was on probation for a period of three years, so the same were void ad initio, is not sustainable because there is a vast difference between an order which is ab initio void and one which is violative of some rules. It is not the case of appellants that the appointment order of respondent as Constable and his further promotion orders as Head Constable and Assistant Sub‑Inspector were made by an authority which had no jurisdiction to appoint the respondent and to further promote him. Thus, the order of appointment of respondent and, his further promotions may be illegal but the same cannot be regarded to be ab initio void. Out aforesaid view stands supported by a reported case of this Court titled Abdul Khalil v. Manzoor Ahmed and 5 others (1998 PLC (C.S.) 1396) wherein similar principle was thoroughly discussed.

8. The contention advanced by the learned Advocate‑General that after the demotion of respondent he was heard by the Service Tribunal as well as by this Court, therefore, there was no necessity of providing the respondent an opportunity of hearing before passing the orders of his demotion, on the face of it, seems to be misconceived. What is the requirement of' law is to provide a personal hearing to the person against whom an adverse order or an order to his disadvantage is to be passed. In the instant case the authority did not provide the respondent an opportunity of hearing when the demotion were passed. If the aforesaid argument be accepted as correct then in none of the cases the proceedings can be quashed where no hearing is given to the concerned employee or Government servant imposing upon him one of the major penalties, as in the instant case, because the demotion from rank is one of the major penalties.

9. No other point of any substance has been urged before us.

10. In the light of what has been stated above, finding no force in this appeal, the same is dismissed with costs. However, the appellants may G proceed against the respondent, if so advised, afresh according to law H.B.T./206/SC(AJ&K) Appeal dismissed.