1989 PLP 1082 (PTD)

Ch. Mushtaq Masud for Petitioner. Date of hearing 16th April, 1989. Petitioner feeling aggrieved by his transfer from the post of Private Secretary to the Chairman, Punjab Public Service Commission (hereinafter referred to as the Commission) to the Recruitment Branch as Senior Scale Stenographer, on 25-9-1988,by the order of Secretary to the Commission culminating into discontinuation of special pay, has invoked eot1stitutional jurisdiction by contending demotion, reduction m rank and emoluments, and a case of coram non judice.

2. To capitulate succinctly the necessary facts relevant for disposal of the present petition are that petitioner, while serving as senior scale Stenographer, in BS 12, with the Commission, on 16-4-1983, vide office order No.17/83 was temporarily promoted as Private Secretary to Chairman of the Commission, in B8 15 with effect from 15-3-1983, which post was subsequently upgraded to BS 16 with special pa\ of Rs.200 p.m., by the Government of the Punjab, Services, General Administration and Information Department vide notification No. SOCAB-I (S&GAD', 7-15/80, dated 19-5-1987 with effect from 1-7-1983; consequently, vide office order No.50/84 dated 4-7-1984, petitioner was allowed to draw the same Subsequently, by virtue of office order No.178/88, dated 25-9-1988, he was transferred to the Recruitment Branch, as Senior Scale Stenographer in BS 16, resultantly special pay of Rs.200 p.m. ceased to be admissible to him, vide office order No.179/88, dated 2R-9-1988, against which he preferred a representation before the Chairman of the Commission on 5-10-198E agitating that the impugned order resulting into demotion, reduction in rank and emoluments has been issued by Secretary to the Commission, who is not competent in this behalf, rather Secretary, Services and General Administration Department of the Government of the Punjab is the competent authority. Repelling both the contentions, the representation was rejected vide letter dated 11-10-1988, by referring to notification of the Punjab Government No. SORIII-1 13/74, dated 31-1-1977 gazetted on 12-5-1977, demonstrating that the competent authority is Secretary to the Commission and not Secretary, Services & G.A.D. Government of the Punjab, that it is a case of transfer simpliciter and not a case of demotion or reduction in rank, further, that special pay of Rs.200 p.m. attached to the post and is admissible to the incumbent at a given point of time. More correspondence was exchanged between the petitioner and the respondents, details whereof are not relevant for the purposes of the present, petition. Eventually, the petitioner lodged an appeal before the Chief Secretary. Government of the Punjab, on 28-11-1988 by sending advance copy directly and the other through proper channel, over which the parties entertained a conflict, wherein on 11-12-1988, petitioner was warned and advised not to use the designation of Private Secretary to the Chairman of the Commission since he has already relinquished the charge of the post, despite of which petitioner persistently insisted upon using the above referred designation, consequently was proceeded against and was imposed minor penalty of censure vide office order No.21/89, which was affirmed in appeal on 14-3-1989, but has no relevancy with the present controversy.

3. Learned counsel for the petitioner has assailed office orders No.178/88 and 179/88 respectively dated 25-9-1988 and 28-9-1988 by contending that transfer from the post of Private Secretary to the Chairman of the Commission to the Recruitment Branch, by Secretary to the Commission amounts to demotion and reduction in rank and emoluments, who is not competent authority in this behalf, rather it is Secretary Services & General Administration Department of the Government of the Punjab, by virtue of rule 6 (3) of the Punjab Civil Servants (Appointment and Conditions, of Service) Rules, 1.974, as amended' vide notification No. SOR-111-2-23/86, dated 8-5-1987.

4. I am afraid, the contention is misconceived. Petitioner, by virtue of office order No.17/83, dated 16-4-1983, was only temporarily promoted from BS 12 to BS 15 by the departmental promotion committee and. was posted as Private Secretary try the Chairman of the Commission, and, consequent upon upgradation of the post, was only allowed to draw, benefits attached thereto vide office order No.50/84, dated 1-7-1984, without being confirmed or substantively appointed as such, nevertheless, upon transfer to the Recruitment Branch, he has been placed in the same pay scale and grade vii. BS 16 (since 33 % of the senior scale Stenographers are availing of that), save for the; fact that the special pay allowance attached o the post of private Secretary has ceased to be admissible to the petitioner simply for the reason that he is no more holding charge of that post:

5. It is relevant to mention that no material was referred to demonstrate that petitioner has a legal vested right to hold that post.

6. I have no doubt in my mind that it is a case of transfer simpliciter and not of demotion, reduction in rank of emoluments, which order, Secretary to the Commission is lawfully competent to pass because it is not a case of punitive measure. A useful reference can be made in this behalf to the case of Parshotam Lal Dhingra v. Union of India (A I R 1958 S.C. 36) wherein it has been held that "A reduction in rank likewise may be by way of punishment or it may be an innocuous thing. If the Government servant has a right to a particular rank, then the very reduction from that rank will operate as a penalty, for he will then lose the emoluments and privileges of that rank. If, however, he has no right to the particular rank, his reduction from an officiating higher rank to his substantive lower rank will not ordinarily be a punishment. The real test for determining whether the reduction in such cases is or is not by way of punishment is to find out if the order for the reduction also visits the servant with any penal consequences." Similarly; in the case of Shamim Mustafa Ansari & others v. Government of Punjab (1972 P.L.C. 590) it has been held that "Reduction in rank primarily involved reduction to a lower post or reduction to a lower time scale or to a lower post in the time scale in which an employee was appointed. The post of an S.E.T. (Senior English Teacher) is not a lower post, inasmuch as, both the posts of an A.D.I. (Assistant District Inspector) and S.E.T. fall within the same class unit of service. They arc in the same grade of pay, and, therefore, none of the aforesaid aspects of, reduction in rank is involved whereas S.E.T. is transferred to the post of an A.D.L or vice versa. The argument that an A.D.I. is supposed to make tours for a particular number of days in a month, and if he is shifted from his post then he would be deprived of travelling allowance and daily allowance would lead to a substantial cut in his remuneration and will thus be a reduction in rank is misconceived. Travelling allowance and daily allowance -are awarded to a person when he is to, perform a journey in the public interest and the essence of these allowances, as laid down in rule 1.17 of the West Pakistan Travelling Allowance Rules, 1969 is that they cannot be converted into a source of profit by a public servant concerned. TA./DA. is neither a profit nor a part of remuneration, as such, because it is not subjected to income-tax or to profit tax and is not counted in the income of a civil servant as such. Additional allowance on account of performing a special job of a local body would also make no difference."

7. In view of the foregoing, the argument that Secretary, Services, General Administration & Information Department is the competent authority to pass order of demotion, or reduction in rank is abortive. Consequently, this petition is without any substance and the same is hereby dismissed in limine. H.B.T/A-643/L Petition dismissed.