MUHAMMAD RASHID Versus AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR
SARDAR MUHAMMAD SAJAWAL KHAN (CHAIRMAN): ‑‑The instant appeal is directed against the order dated 28‑1‑1992 of District Education Officer Bagh by which the appellant Muhammad Rashid, Naib‑Qasid, Government High School, Dhal‑Qazian was removed out of service and instead of him Muhammad Jamil was appointed as Naib‑Qasid .in the said High School. The appeal is also directed against the order dated 12‑2‑1992 of Divisional Director Schools, Muzaffarbad Division by which the appeal of the appellant was dismissed.
2. The relevant facts to be briefly stated are that the appellant was selected for his appointment as Naib‑Qasid in the Government High School Dhal‑Qazian by the Selection Committee formed under rules and he was accordingly appointed as such by the Headmaster of the said High School who was the appointing authority in case of the appellant. But Muhammad Jamil respondent No. 4 who was perhaps a contesting candidate for being appointed as Naib‑Qasid instead o!' the appellant felt himself aggrieved by the aforesaid order of appointment of the appellant and brought a written complaint before the learned Ombudsman at Muzaffarabad. The learned Ombudsman after examining the reports of the Education Department held the view that the appointment of the appellant was not ordered in accordance with the merits and hence the same should be vacated after giving show‑cause notice to the present appellant. In compliance with the orders of the learned Ombudsman the District Education Officer, Bagh made the impugned order under appeal. Now the appellant felt himself aggrieved and he brought an appeal against the impugned order of his removal from service before the Divisional Director of Schools, Muzaffarabad Division. But his appeal was not successful there and ultimately he brought second appeal at this forum for the redress of his grievances. The grounds of appeal as are contained in the memo of appeal are that the appellant was duly qualified for the post held by him. The learned Ombudsman as well as District Education Officer, Bagh held no powers to make the impugned orders of his removal from service. The appointment of the appellant was rightly made by the Headmaster of High School on the basis of the report submitted to him by the Selection Committee and hence the order made by the District Education Officer, Bagh, vacating the appointment of the appellant is unlawful, illegal and not maintainable. The learned Ombudsman also had no jurisdiction to interfere in the executive function of the Headmaster of the said High School.
3. It is prayed by the appellant that both the impugned orders be set aside and he may be allowed to continue his service on the post of Naib‑Qasid in the High School of Dhal‑Qazian.
4. By a short order dated 17‑2‑1992, the above appeal was admitted for regular hearing in this Tribunal and the respondents were asked to appear and submit their objections, if any as to the maintainability of the present appeal. The objections filed on behalf of the respondents are that the services of the appellant were terminated under the orders of the learned Ombudsman and as such no appeal is maintainable against that order. Under section 29 of the Azad Jammu and Kashmir Establishment of the Office of Mohtasib (Ombudsman) Ordinance, 1991 (hereinafter to be referred as Mohtasib Ordinance, 1991), the jurisdiction of this Tribunal for entertaining an appeal against the orders made at the directions of the learned Ombudsman is completely barred. The appellant was over age on the date of his appointment as Naib‑Qasid and his age was not relaxed before making his appointment. Apart from that the appellant was on probation for two years and hence a show‑cause notice was not essential to be supplied to him for vacating his temporary appointment.
5. We have carefully examined the written arguments filed in this Tribunal by the learned counsel for the parties. We have also gone through the impugned order as well as the order of the learned Ombudsman by which he was pleased to direct the removal of the appellant from his service of Naib -Qasid and the appointment of Muhammad Jamil respondent No. 4 in his stead. There is no denying the fact that the impugned order of removal of the appellant from service was made by the District Education Officer, Bagh at the instance of learned Ombudsman who had made a detailed order for providing job to the respondent No. 4. The argument that prevailed upon the learned Ombudsman seems to be that in his view the respondent No. 4 who was a matriculate must not have been ignored while making the selection of the appellant for the post of Naib‑Qasid. It is true that the respondent No. 4 was matriculate as against the appellant who was simply a primary pass. But this fact alone is not sufficient to cast doubts that some malpractice in violation of the service rules has taken place in the Office of Headmaster, High School Dhal‑Qazian while making the appointment of the appellant. According to the prevalent rules of service, the only education required for the post of a Naib‑Qasid is that he must be a literate person to some extent. The nature of duties of NaibQasid,, of course, demands that he should be well prepared to do all odd jobs for the school administration which a person with better education might not like to do. Therefore, the selection and appointment of the appellant prima facie does not appear to have taken place as a result of any malpractice by the school administration.
6. It is argued on behalf of the respondents that under the provisions of section 29 of the Mohtasib Ordinance, 1991, the jurisdiction of Service Tribunal and all Civil and Criminal Courts is barred from entertaining an appeal against the order of the learned Ombudsman and no Court nor any other authority can question the validity of any action taken or intended to be taken or, order made, 'or anything done, or purporting to have been taken made or done under the Establishment of the Office of Ombudsman in Azad Jammu and Kashmir Ordinance, 1991. We quite agree with the learned counsel for the respondents that the matters which directly or indirectly relate to the powers and functions of Ombudsman cannot be challenged before a Tribunal or a Court of law. But we are very sure about it that the decision taken by the learned Ombudsman in the cases which are excluded from the powers and functions of the Ombudsman as are specified under section 9 .of said Ordinance are open to judicial scrutiny and review at all times. To appreciate the law on the point, it appears essential that section 9 of the said Ordinance which relates to the powers and functions of the Ombudsman should be reproduced below‑.‑
Section 9. Jurisdiction, functions and powers of the Mohtasib .‑‑(1 ) The Mohtasib may on a complaint by an aggrieved person, on a reference by the President, the Azad Jummu and Kashmir Council or' the Assembly as the case may be, or on a motion of the Supreme Court or a High Court made during the course of any proceedings; before it or on his own motion, undertake any investigation into any allegation, maladministration on the part of any Agency or any of its officers .dr. employees:
Provided that the Mohtasib shall not have any jurisdiction to investigate or inquire into any matters which‑‑
(a) are sub judice before a Court of competent jurisdiction or judicial Tribunal or Board in Azad Jammu and Kashmir on the date of the receipt of a complaint, reference or motion by him; or
(b) relate to the external affairs of Pakistan or the relations or. Dealings of Pakistan with any foreign State or Government; or
(c) relate to, or are connected with, the defence of Pakistan or Azad Kashmir or any part thereof, the Military, Naval and Air Forces of Pakistan, or the matters covered by the laws relating to those forces.
(2) Notwithstanding anything contained in subsection (1) the Mohtasib shall not accept for investigation any complaint by or on behalf of a public servant or functionary concerning any matter relating to the Agency in which he is, or has been working in respect of any personal grievance relating to his service therein.
(3) For carrying out the objectives of this Ordinance and, in particular for ascertaining the root causes of corrupt practices and injustice; the Mohtasib may arrange for studies to be made or research, to be conducted and may recommend appropriate steps for their eradication.
The section referred to above defines the jurisdiction, functions and powers of Mohtasib. It is provided by the said section that the Mohtasib may on a complaint by an aggrieved person, on a reference by the President, the Azad Jammu and Kashmir Council or the Assembly, as the case may be, or on a motion of the Supreme Court or a High Court made during the course of any proceedings before it or his own motion, undertake any investigation into any allegation of maladministration on the part of any Agency or any of its Officers or employees: But this subsection (1) of section 9 is controlled by the provisos (a), (b) and (c) given above and the matters as are contained in the provisos have been specifically excluded from the jurisdiction, functions and powers of the learned Ombudsman. Apart from that subsection (2) of section 9 of the Mohtasib Ordinance, 1991 has placed an embargo on the jurisdiction, functions and powers of the learned Ombudsman to the affect that not withstanding anything contained in subsection (1) of section 9, the learned Ombudsman shall not accept for investigation any complaint by or on behalf of a public servant or functionary concerning any matter relating to the Agency in which he is or has been working in respect of any personal grievance relating to his service therein. In Mohtasib Ordinance, 1991 the words `Public Servant' have been defined to mean a public servant as is contained under section 21 of 'Pakistan Penal Code and according to that definition every person who is employed in the affairs of the Government is a public servant. The word `Agency' is defined in the Mohtasib Ordinance, 1991 to mean a Secretariat Department, attached Department Commission, Office of the Government or a statutory Corporation or other Institution established or controlled by the Government but does not ‑include the Supreme Court, the Supreme Judicial Council, the Shariat Court, High Court, Service Tribunal, any Court or a judicial Tribunal. From the above definitions of the words `Public Servant' and civil servant have got the same meanings and all the civil servants or the public servants and the Agency would mean department or functionary of the Government for the purposes and operation of subsection (2) of section 9 of Mohtasib Ordinance, 1991. In the instant case under appeal, the complainant is not a public servant or a civil servant but his grievance pertains to service matter in the Education Department. Therefore, in our opinion the jurisdiction of the learned Ombudsman for taking cognisance of the complaint of Muhammad Jamil respondent No. 4 is excluded and he held no power to interfere in the administrative functions of the Headmaster of High School Dhal‑Qazian. If a public officer or a public servant is held guilty of maladministration; malpractices such like bribery, jobbery, favoritism and nepotism then, of course, a complaint can be brought before the learned Ombudsman but so far the case under appeal is concerned no malpractice can be attributed to the Headmaster of the High School who was quite competent to take the decision about the ‑ appointment of the appellant. Hence the objection raised by the learned counsel for the respondents that this Tribunal has no jurisdiction to entertain an appeal against an order passed by a departmental authority at the instance of the learned Ombudsman is held to be devoid of force and is brushed aside.
It is next argued on behalf of the respondents that the appointment of the appellant was on probation for 2 years and as such a show‑cause notice was not necessary to be issued to him before making the impugned order. A probationary can be removed from service without a notice provided he is found guilty of misconduct and improper and unsatisfactory performance of his duties. We quite agree that during the period of probation, a civil servant or a' public servant can be removed out of service without issuing a show‑cause notice. But the case of the present appellant is somewhat different. The Headmaster of High School Dhal‑Qazian had no complaint against the work and the conduct of the appellant and as such his removal from service being without any legal justification was not proper. He has been condemned unheard under the impugned order of his removal and the principles of natural justice do require it that he should have been given at least a personal hearing as is provided in Efficiency and Discipline Rules, 1977 in cases calling for the disciplinary actions by the authorities. In the instant case the impugned order was made by an Officer other than the appointing authority, therefore, service of a show‑cause notice upon the appellant before making the impugned order was however advisable for meeting the ends of justice.
8. It is argued on behalf of the appellant that the District Education Officer Bagh held no powers to make the impugned order and as such the order was not maintainable in law. 1t is very correct that the impugned order has been made by an officer other than the appointing authority. It is argued on behalf of the respondents that since the appointing authority had refused to make the impugned order in an apologetic manner, his senior officer who was also the appellate authority in case of the appellant was quite competent to make the impugned order and the order was not suffering from any legal defect. It shall be noted here that a senior officer cannot by himself assume the powers of a subordinate officer. In our opinion the District Education Officer has transgressed the limits of his powers and authority. It hardly needs to be mentioned here that when an authority has been authorised to make some order under the rule of law, it is the aforesaid authority alone who can exercise powers in question and similarly it is a well‑settled principle of law that when anything is prescribed to be done in a particular way it should be done accordingly or not at all and that an order passed by an authority other than the competent one, even though of a higher rank is a nullity in the eyes of law. These principles are applicable even with a greater force in case of a penal order like the one impugned in this appeal. The refusal of the headmaster to vacate the order of appointment of the appellant is quite appreciable because he did not like to undo his own order which was quite in accordance with the rules of procedure. The impugned order is undoubtedly bad in law on this account too that it was signed and made not by the appointing authority but by an officer senior in rank to the officer holding the job of appointing Authority. If the senior officer is designated to be the appellate authority against the order made by the Headmaster of High School, still the powers vested in the Headmaster by a rule of law cannot be exercised by the senior officer (appellate authority). It is true that the'. Headmaster while submitting his apology had suggested to the senior officer to make the order himself but by doing so he is not divested of the powers which ate conferred upon him by the service rules.
9. The last objection by the counsel of respondents is that the appellant was overage and without firstly seeking, relaxation of his age for service, his appointment was bad in law. If the age of the appellant was more than the age prescribed in the rules for service it is not a legal impediment which should require the appellant to be removed out of service at any stage. It will be the sufficient compliance of the relevant rules of service if the appointing authority of the appellant makes a reference to the Government for relaxation of his age who has been otherwise considered suitable for the post.
10. For the above reasons we accept the appeal and set aside both the impugned orders. Since the appellant is already in service and was not relieved of his duties in compliance with a stay order issued by this Tribunal it is ordered that he will continue his service as Naib‑Qasid and he shall be paid his emoluments as before. No order as to the costs.
A.A./171/Sr.A Appeal accepted.