Versus Haji Muhammad Ashraf , Raja Muhammad Hanif Khan
RAJA BASHIR AHMED KHAN (CHAIRMAN). ‑‑‑ We propose to dispose of Appeal No. 760 of 1994 titled as Sh. Nisar Ahmed Nisar v. Speaker, Legislative Assembly and Appeal No. 766 of 1994 titled as Kh. Muhammad Anwar Loan versus Speaker, Legislative Assembly by this consolidated judgment since the impugned Notification and respondents in both the appeals are same.
2. The facts of Appeal No. 760 of 1994 filed by Sh. Nisar Ahmed Nisar briefly stated are that the appellant joined service as Junior Clerk in 1973 and on the recommendations of Selection Committee was promoted as Private Secretary to Secretary, Legislative Assembly on 19‑3‑1992. The post of Private Secretary to Opposition Leader in Grade B-16 was created vide Government order, dated 27‑1‑1992. The appellant was appointed by transfer as Private Secretary to Opposition Leader on 7‑6‑1993. The post of Private Secretary to Opposition Leader was upgraded from B‑16 to B‑17 with special pay of Rs. 375 through the Notification No. 8035‑40/LA/94, dated 19‑8‑1993. The appellant was granted Selection Grade B‑17 on the recommendations of the Departmental Committee through the Notification, dated 3‑2‑1994. On the upgradation of post of Private Secretary to Opposition Leader the appellant Kh. Muhammad Anwar Loan was appointed as Private Secretary on 3‑2‑1994. The appellant was also promoted as Private Secretary to Deputy Speaker in lien of one Sajjad Hussain. The Speaker of Legislative Assembly appointed respondent No.2 as Private Secretary B‑17. The respondent No.2 before his appointment was holding the post of Private Secretary B‑16. The appellant filed a review petition before respondent No. 1. After waiting for a period of ninety days the appellant has filed this appeal before the Tribunal.
3. In other appeal titled as Kh. Muhammad Anwar Loan v. Speaker, Azad Jammu and Kashmir Legislative Assembly and others, the appellant Kh. Muhammad Anwar Loan was Private Secretary B‑17 and was working as Private Secretary to Deputy Speaker in lien of one Mr. Sajjad Hussain. He was appointed by transfer as Private Secretary B‑17 to Leader of Opposition under Notification No. 731‑831 /LA/94, dated 3‑2‑1994. The appointment of respondent Raja Arshed Hussain who was Private Secretary in B‑16 was made as Private Secretary to Leader of the Opposition in Grade B‑17. The appointment was, however, ordered to be at the discretion of the Leader of the Opposition and was to last at the expiry of tenure of Leader of the Opposition. The appellant felt aggrieved of this order and filed a review petition before respondent No. 1 on 1‑5‑1994. The review petition remained undecided and when the statutory period of ninety days elapsed the appellant has filed this appeal.
4. The written objections have been filed on behalf of the respondents in the titled appeals. Similar objections have been raised in both the appeals.
5. We have heard counsel for the parties and have gone through the record.
6. On behalf of the appellants it has been contended that the order of appointment of respondent Raja Arshed Hussain is violative of the Rules known as the Azad Jammu and Kashmir Legislative Assembly Secretariat (Recruitment and Conditions of Service) Rules, 1992. In pursuance of provision of Rule 5 (2) of said rules the Speaker was pleased to prescribe the minimum qualifications, experience and method of recruitment to various posts in the Assembly through Notification No. LA/10628/92, dated 28‑12‑1992 for the post of Private Secretaries to Speaker/Deputy Speaker and Leader of Opposition. The method of recruitment was as follows:‑‑
Private Secretaries to Speaker/Dy, Speaker and Leader of Opposition (B‑17).
(i) Degree from recognised University;
(i) By promotion on the basis of selection on merit from among Private Secretaries (B 16); or
(ii) Shorthand speed of 120 w.p.m. and
(ii) By promotion on the basis of selection on merit from among the Personal Assistants and Senior Scale Stenographers with at least five years experience as such; or
(iii) Typing speed of 40 w.p.m.
(iii) By transfer of a suitable person already employed in any department of Govt. in equivalent scale; or
(iv) By initial recruitment.
Under the rules the post of Private Secretary to the Leader of Opposition could be filled only by promotion on the basis of selection on merit from among Private Secretaries. The promotion of respondent Raja Arshed Hussain was not made in B‑17 on regular basis and as a private Secretary in B‑16 was appointed as Private Secretary to Leader of the Opposition in BPS‑17. This appointment is clearly against the spirit and method of recruitment given under the rules and cannot be sustained. The counsel for the respondents has argued that the order of appointment and promotion of appellants dated 3‑2‑1994 was purely temporary and could be terminated at the will of the competent Authority particularly in the case of appellant Sh. Nisar Ahmed Nisar whose lien was kept against the post of Private Secretary to Secretary Assembly. The contention of counsel for respondents could carry some weight if the appointment of respondent Raja Arshed Hussain was made in accordance with the provisions of rules. Since the appointment is devoid of any legal sanctity, therefore, the contention of counsel for respondents cannot be accepted.
7. The counsel for Speaker, Legislative Assembly in Appeal of Kh. Muhammad Anwar Loan made a statement before the Tribunal on 27‑9‑1995.
The statement is reproduced as below:‑‑
From the statement it appears that the post of Private Secretary to Leader of the Opposition is of permanent nature and was not discretionary post. The appointment against this post could only be affected by promotion on the recommendations of Selection Committee. The order in respect of appellant Kh. Muhammad Anwar Loan has been passed without hearing the appellant and to this extent the appeal of Kh. Muhammad Anwar Loan is valid.
8. In view of this statement of the counsel for Speaker, Legislative Assembly there remains no doubt to hold that the dislodging of Kh. Muhammad Anwar Loan, appellant was illegal and he was deprived of special pay which was attached to this post.
9. The counsel for appellants has also argued that the order of reversion of appellants was passed without hearing them and the principle of audi alteram partem' has also been violated. The counsel for appellants has referred 1995 SCR 324 PLD 1985 AJK 17 in support of this argument. The record on the file is abundantly clear that the appellants were condemned unheard. The impugned Notification in view of the authorities cited above is illegal and inappropriate and can be declared as having been passed without lawful authority and is liable to be quashed. The appellants were holding posts although temporary but after having been declared suitable for promotion. They were in the higher grades of pay. Kh. Muhammad Anwar Loan was drawing special pay of the post. The appellants were deprived of the remunerations attached to the posts on account of illegal order of the respondent No. 1 and both the appellants appeared to have been affected in matter of their pay and allowances. The order under appeal had the effects in it to deprive appellants of their legal rights. They are, therefore, aggrieved persons and could lawfully come before this Tribunal for the redress of their grievance.
10. In view of the above we accept both the appeals set aside the impugned notification and restore the respective positions of the appellants with all back benefits as they were entitled at the time of issuance of impugned Notification. No order as to costs.
H.B.T./287/Sr.(AJ&K) Appeals accepted.