P L D 1967 Lahore 566 (PLP)

MUHAMMAD GUL, J.‑The petitioner joined service in 1948 ii the Rehabilitation Department under the former Government of the Punjab Later, in 1960, he was appointed Assistant Accounts Officer in the Settlement Organization and continued in that post till 1961, when on account of reduction in the posts of Assistant Accounts Officers he was reverted as Accountant. However, vide order dated the 30th of May 1963 (Annex. R/1) he was again promoted as Assistant Accounts Officer. The order provided inter alia :‑ "(i) That his employment under Government is temporary and that his services may be terminated by Government at any time without assigning any reasons by giving a notice for a period not less than one month's or payment in lieu of the notice, of a sum equivalent to his pay for one month or for the period by which the notice falls short of one month .. On the 3rd of June 1965, the Chief Settlement and Rehabilitation Commissioner made the following order, namely‑ "Owing to general retrenchment in the Settlement Organization, it would not be possible to retain the under mentioned temporary Assistant Accounts Officers beyond 30th June 1965 (A. N.) :‑ (1) Mr. Abdul Khaliq Qureshi, Assistant Accounts Officer, Headquarter's Office, Lahore (2) Mr. Ansar Hussain, Assistant Accounts Officer, Thatta. "They are accordingly hereby served with one month's notice of termination of their services as Assistant Accounts Officers as laid down in the terms and conditions of their appointment. Their services would stand terminated on the 30th June 1965 (A. N). The period by which this notice falls short of thirty days will be covered by leave to be granted in accordance with 3 (i) below ..

2. The petitioner by means of this writ petition under Article 98 of the Constitution impugns the validity of the order terminating his service on the ground that it offended against the Policy Letter No. F. 10 (27)/65‑SEII, dated the 17th of April 1965 (Annex. `B'), issued by the Chief Settlement Commissioner with the concurrence of the Establishment Division, by which, owing to the impending winding up of the Settlement Organization, certain instructions for the absorption of surplus officers and staff belonging to the Organization were issued. The letter required the preparation of fresh lists of surplus officers and staff on the following basis : "(i) The services of officers and staff re‑employed after retirement may be dispensed with. (ii) The officers and the staff on deputation from other Government Departments, etc. should be reverted to their parent Deptts. (iii) The officers and staff who have reached the age of superannuation should be retired. (iv) The officers and staff to be retained in the Settlement Organization should then be determined in the order of seniority. For the purpose of seniority the date of appointment in the grade should be taken as the deciding factor." The petitioner's case is covered by (fv) above, and his grievance is that persons junior to him in the cadre of Assistant Accounts Officers have been retained in service in violation of the above condition and, therefore, the order terminating his service operates as order of his dismissal within the meaning of Article 177 of the Constitution and is violative of its provisions.

3. The fact that a number of Assistant Accounts Officers junior to the petitioner were retained in the Settlement Organiza tion was not disputed. However, the petitioner's termination of service was sought to be justified on the ground that it was temporary from its very inception and further because of his indifferent service record.

4. Learned counsel for the petitioner argued with some emphasis that Policy Letter of the 17th April 1965 (Annex. B') was absolute in its requirements which did not admit of any exception and, therefore, the petitioner had a right to be retained in service, until he became the junior most in service. It was further contended that if the real motive underlying the termina tion of the petitioner's service was his indifferent service record, then his service could not have been determined except as a result of disciplinary proceedings against him and after a show‑cause notice a under Article 177 (3) of the Constitution, there being no distinction between a permanent and temporary Government servant in this behalf. In support of the later part of the argument reliance was placed upon the dicta of their Lordships of the Supreme Court in Federation of Pakistan v. Mrs. E. V. Issacs (P L D 1956 S C (Pak.) 431), Nur‑ul‑Hassan v. Federation of Pakistan (P L D 1956 S C (Pak.) 331), Ghulam Sarwar v. Pakistan (P L D 1962 S C 142) and of this Court in Yusuf Ali Khan v. The Province of the Punjab (P L D 1949 Lab. 219).

5. In our opinion, the above argument is wholly fallacious. In the first place, there is no warrant for the suggestion that instructions in the policy letter (Annex. B') are mandatory in their requirement and would override the initial condition of his employment which throughout remained temporary and was expressly made terminable on one month's notice. We consider this letter to be merely directory in its import intended only for the guidance of the department concerned, and its non‑observance would scarcely lay a foundation for the issuance of a writ. Moreover, as pointed out already, the respondents have taken a definite stand that the petitioner's service was terminated, firstly, on account of reduction in the number of posts and, secondly, because of his indifferent record of service and it cannot be urged that the letter did not leave any choice to the Government to retain persons who are more efficient and dutiful in preference to those who are not though senior in length of service. We need hardly emphasize that in matters affecting the public service results deleterious to public interest can readily follow if questions of application of service rules or other instructions are approached as if the duty is merely to assert rights vested in the public servant who is the complainant. The paramount purpose and principle in these matters is that the integrity and efficiency shall be maintained in the interest of public service and of the public generally.

6. We are further of the opinion that the petitioner's case is clearly distinguishable from the three precedent cases relied by his learned counsel, for the main reason for the termination of the petitioner's service is reduction of the posts of the Assistant Accounts Officers and not for reasons of any misconduct. It may be that because of his indifferent service record the petitioner's termination of service has been accelerated but that, by itself, would not make the impugned order as an order of his removal or dismissal from service. In our view, the petitioner's case is directly covered by the recent judgment of their Lordships of the Supreme Court in Pakistan v. Abdul Ghani (P L D 1964 S C 68). Abdul Ghani, respondent, in the Supreme Court was General Mechanical Instructor employed in the Technical Training Centre at Karachi which, as in this case, was a temporary department. Among the conditions governing his employment was that "Technical Instructors appointed to the Central Government are in temporary posts and their services may be terminated on one month's notice." Abdul Ghani's service was terminated on one month's notice in pursuance of the above condition of his employment. He brought a suit to question the order of termi nation of the service and the trial Judge decreed the suit relying upon an averment in the written statement of the Government that Abdul Ghani's removal by notice had been "the most lenient action that could be taken against the plaintiff for his conduct and repeated misbehavior", and held that the termination of service in that case was due to misconduct and, therefore, the provisions of section 240 (3) of Government of India Act, 1935, were attracted. Both the first Appellate Court and the High Court agreed with the above contention and decreed Abdul Ghani's suit. Their Lordships of the Supreme Court, on further appeal by the Government reversed the judgments and the decrees of the Courts below and distinguished that case from the cases of Ghulam Sarwar (and similar other cases) by the following observation:- "Some reference was made to the case of Ghulam Sarwar v. Pakistan (P L D 1962 S C 142), but between that case and the present case, a major difference is that Abdul Ghani's appointment was to a temporary post, in a temporary service which had been set up to facilitate the re‑absorption and rehabilitation in civil life of the great numbers of military personnel who were demolished at the end of the Second Great War. Ghulam Sarwar held a permanent post in a permanent service, and it was held that his removal by notice under his personal contract amounted to removal, requiring compliance with the provisions of section 240 (3) of the Government of India Act." In our opinion, the instant case and that of Abdul Ghani stand on the same footing and are distinguishable on facts from the case relied upon by the petitioner's learned counsel.

7. There is yet another aspect of the case, which goes to the very root of the petitioner's claim. It. is not denied that the petitioner throughout held a temporary post and, as such, his case fell under Article 179 (2) of the Constitution and this at once excludes his case from the constitutional safeguards provided in Articles 175 to 178 of the Constitution. Article 179 of the Constitution reads‑‑ "(1) Subject to this Constitution and law, the President, in relation to the affairs of the Centre and the Governor of a Province, in relation to the affairs of a Province, may authorize the temporary employment of persons in the service of Pakistan and may make rules for regulating such temporary employment. (2) The preceding Articles of this Chapter (other than Article 174) do not apply to or in relation to the temporary employment of persons in the service of Pakistan." As pointed out by Mr. Munir at page 510 of his Commentary on the Constitution of Islamic Republic of Pakistan, Article 179 is an innovation and the decisions in which section 240 of the Govern ment of India Act, 1935, and Article 181 of the 1956 Constitu tion were applied to the cases of temporary Government servants have become obsolete. Therefore, any reliance after coming into force of the Constitution by or on behalf of temporary employees on Articles 175 to 178 of the Constitution could be mistaken. Learned counsel for the petitioner relied upon Article 234 of the Constitution and argued that the petitioner being a pre‑Constitu tion employee of the Government was entitled to continue in the service of Pakistan "on the same terms and conditions as were applicable to him immediately before the commencement of the Constitution." But argument overlooks the fact that the opening words of this provision make it subject to the other provisions of the Constitution and Article 179 (2) is such provision. Similarly, Article 177 (1) is qualified by the words, "Subject to this Constitution . . . . ." On the other hand, Article 179(2) is not hedged by any such condition and, therefore, its provision will have overriding effect. The result, therefore, is that as from the commencement of the Constitution temporary employees of the Government are no more entitled to the constitutional safeguard contained in Articles 177 and 178 of the Constitution. After the close of argument, learned counsel for the petitioner invited our attention to a recent judgment of their Lordships of Supreme Court in Muhammad Azhar v. Commissioner of Karachi (1) in support of his argument that notwithstanding the provision of Article 179 (2) of the Constitution, the constitutional safeguards in Article 177 of the Constitution were applied to the appellant who was temporary employee but who was in the service of Pakistan since before the commencement of the Constitution. In that case, however, the attention of their Lordships was not drawn to the provisions of Article 179 (2) of the Constitution and that case suffered from a patent defect that the order of removal from service was by an authority lower than the appointing authority.

8. For the aforesaid reasons, we find no force in this writ petition, which is hereby dismissed. We, however, make no order as to costs. K. M. A. Petition dismissed.