P L D 1962 Supreme Court 433 (PLP)

HAMOODUR RAHMAN, J.‑

This appeal by special leave, has been filed by the Province of West Pakistan and is directed against the judgment and order of a Division Bench of the High Court of West Pakistan, quashing by a writ of certiorari an order of the Punjab Government passed In July 1951 reducing the respondent in rank. The respondent was appointed on the 30th of October 1926, to the Indian Service of Engineers, which was then a Secretary of State's Service, and was later promoted as Chief Engineer, Irrigation, Punjab, in February 1948. He was confirmed in the latter post in 1949, but in September 1950, the former Govern ment of Punjab ordered an enquiry Into his conduct under the provisions of the Public Servants Enquiries Act, 1850. Mr. Justice Muhammad Sharif, who was then a Judge of the High Court of Judicature at Lahore, was appointed Commissioner for the purposes of the said enquiry and was asked to report in respect of some four charges. It is unnecessary for the purposes of the present appeal to recapitulate the said charges but it will suffice to mention that the Commissioner found three of the said charges partially proved and reported accordingly to the said Government. The latter then called upon the respondent to show cause as to why he should not be dismissed from service, and submitted the record of the enquiry along with the res pondent's explanation to the above‑mentioned show‑cause notice to the Government of Pakistan which, in its turn, forwarded the same to the Federal Public service Commission for advice, The latter advised that the findings did not call for any punishment, but the Government of Punjab preferred to act upon the findings of the Commissioner who held the enquiry, and in July 1951, ordered that the respondent be reduced to the rank of Superintending Engineer and be placed in the junior‑most position amongst the Superintending Engineers. He was also, debarred from becoming a Head of Department for five years. In August 1951, the respondent filed an appeal to the Governor‑General of Pakistan which was forwarded by the Provincial Government in September of that year. But in February 1952, the Government of Pakistan, through its Establishment Division, informed the Provincial Government that in respect of officers of the former Secretary of State's Services serving under the Provincial Governments the position is that an appeal lies to the Governor and not to the Governor‑General, although under an arrangement with Provincial Governments incorporated in the Establishment Division's letter No. F. 11/1/49‑Ests. (SE), dated the 8th June 1949, the Public Service Commission which is to be consulted in such cases is the Pakistan Public Service Commis sion and not the Provincial Commission. The Provincial Govern ment was further informed that the advice of the said Public Service Commission had been obtained both before the original orders were passed and at the appeal stage, but the papers were returned to the Provincial Government along with the opinion of the Pakistan Public Service Commission for the Governor of Punjab to decide. Thereafter, it appears that on the 23rd of December 1952, the Law Ministry of the Government of Pakistan, again advised the Provincial Government that an appeal lies neither to the Governor nor to the Governor‑General. In the meantime the respondent, who had been transferred to the central Government, in February 1953, as a precaution ary measure submitted also a representation to the Governor General through the Provincial Government, so that if his appeal is considered to be Inadmissible, it may still be possible for the Governor‑General to deal with his case on the basis of his representation. In October 1955, whilst he was away on a Delegation to Washington he was informed by the Establishment Division of the Government of Pakistan, through the Leader of the Delegation, that in the opinion of the Ministry of Law officers of the former Secretary of State's Services have no right of appeal to the Governor‑General from an order passed by the Provincial Government. As such, the Provincial Government could no longer withhold his representation to the Governor General under the then existing instructions, and that the Provincial Government had been asked to forward his represen tation to the Governor‑General. Notwithstanding the Provincial Government on the 1st of August 1956, informed the Ministry of Industries, Government of Pakistan, that it had, in the exercise of the discretion vested in it, withheld the above representation of the respondent. This decision was communicated to the res pondent on the 7th of August 1956, but when he, relying on certain instructions issued by the Central Government contained in Notification No. 7/1/48‑Est. (SE), dated the 14th November 1.949, asked to know the reasons for which his representation had been withheld, no reply was furnished. In September 1957, the respondent, who was then posted in the new Province of West Pakistan as Additional Chief Engineer, again pressed for a reply to his above letter, but as no reply was forthcoming, he moved the High Court of West Pakistan on the 24th of October 1957, for the Issuance of a writ in the nature of mandamus or an appropriate order or direction to the Provincial Government (i) to treat the order passed by it reducing him In rank as unconstitutional and illegal and not to give effect to it, (ii) in the alternative, if it be found that his appeal and representation had been illegally withheld, to direct the said Government to forward the same to the President of the Republic of Pakistan for his consideration and also to direct the Republic of Pakistan to entertain the appeal and place ft before the President for decision, and (iii) to consider the respondent for appointment to the pest of Chief Engineer, irrigation, if the order of punishment upon him is found to be void and inoperative. The disposal of this petition was inordinately delayed and It was not taken up for hearing until the 4th of March 1959. The High Court of West Pakistan, however, on the merits of the respondent's case, took the view that the right of appeal given to a former member of the Secretary of State's Services by rule 57 of the Civil Services (Classification, Control and Appeal) Rules had not been, and could not be, taken away by reason of the provisions of section 241 of the Government of India Act, 1935. It was, furthermore, of the view that the respondent also had a right of representation to the Governor General or the Governor and that their powers in that behalf could not be abridged or taken away on account of the provisions of subsection (5) of section 241 of the Government of India Act, 1935. In any event, the Government of Punjab had acted in violation of the instructions contained in the Notifica tion of the 14th of November 1949, in withholding the representation. Having come to this conclusion the High Court, felt that since the respondent was due to retire on the 14th of March 1959, it would be meaningless to direct that his appeal be placed before the President of Pakistan as the successor to the Governor‑General for consideration after his retirement. Hence, although in the writ petition no relief for quashing the order reducing the respondent in rank bad been asked for, the High Court thought it fit and proper to quash the said order by a writ of certiorari. The Provincial Government in this appeal seek to challenge the propriety of this order on the grounds, firstly, that in granting a relief not asked for by the respondent himself in his writ petition the High Court had acted beyond its jurisdiction, secondly, that the order of the Governor demoting the respondent being purely an administrative order could not be quashed by a writ of certiorari, and thirdly, that since the respondent was serving under a Province, he was under the control of the Governor who was competent to pass the impugned order and the same was final, as no appeal lay against his order. The Provincial Government further maintain that the reason which had prompted the High Court to issue a writ of certiorari, namely, that the respondent was about to retire from service in a few days time, was no longer tenable, as tire respondent had in fact been re‑employed as a Chief Engineer for a further period of three years. It is not disputed that the respondent was originally appointed by the Secretary of State for India to the Indian Service of Engineers, which was at that time an All‑India Service, [vide Item 8 of Schedule 1 to the Civil Services (Classification, Control and Appeal) Rules], and under rule 57 (1) of the said Rules a member of art All‑India Service could "appeal from the order of a Local Government to the Governor‑General‑in Council and from an order, original or appellate, of the Governor‑1 General‑in‑Council to the Secretary of State‑In ‑Council." Again, under the first proviso to sub‑rule (5) of the said rule even a member of a Provincial Service, if he was a person who had been appointed by the Secretary of State‑in‑Council, was "entitled as an alternative to the appeal to the Governor to appeal to the Governor‑General‑in‑Council, and, if his pay as defined in the Fundamental Rules is not less than Rs. 500 per mensem, thereafter to the Secretary of State‑in Council." The respondent in the present case as a person appointed by the Secretary of State‑in‑Council and was in 1951 drawing much more than Rs. 500 per mensem. Under the Classification and Appeal Rules, therefore, he had clearly a right of appeal to the Governor‑General‑in‑Council even if he was employed in the Provincial Service, The Government of India Act, 1935, did not also materially alter his position, for, under subsection (3) of section 241 thereof no rules could be framed, which did not secure to him the same or similar rights of appeal to corresponding authorities as he would have had immediately before the commencement of Part III of the said Act. Further more, by reason of the proviso to subsection (4) of the said section no appropriate Legislature in India could even enact a law so as to deprive him of the rights which were required to be given to him by the provisions of subsection (3) thereof. Again, under subsection (5) of section 241 no rule or Act of a Legislature could limit or abridge the powers of a Governor General or a Governor to deal with the case of any person serving in any civil capacity in India in such manner as may appear to him to be just and equitable. It is also admitted that no new rules have so far been framed under the Government of India Act, 1935, regulating the conditions of the service to which the respondent belonged. In the absence of such rules the Civil Services (Classification, Control and Appeal) Rules were, by virtue of section 276 of the Act of 1935, to continue in force so far as consistent with the provisions of the said Act and were to be deemed to be rules made under the appropriate provisions thereof. Even under the Indian Independence Act of 1947, a person, who having been appointed by the Secretary of State continued after the 15th August 1947, to serve the Government of either of the new Dominions or of any Province or part thereof, was assured by section 10 of the latter Act, that he shall be entitled to receive "the same rights as respects disciplinary matters or, as the case may be, as respects the tenure of his office, or rights as similar thereto as changed circumstances may permit, as that person was entitled to immediately before the appointed day." Section 10‑A of this Act further provided that after the 15th of August 1947, the power to alter any order, rule, regulation or other instrument passed or made by the Secretary of State is to be vested in the Governor‑General and may be exercised by him. The position, therefore, even after the 15th of August 1947, was that members of the former Secretary of State's Services were as regards punishment to have the same or similar rights of appeal as they had prior thereto, with only this modification that the powers of the Secretary of State in India were thereafter to be exercised by the Governor‑General of Pakistan. The late Constitution of Pakistan too provided by Article 233 as follows:‑-- "Except as otherwise expressly provided by the Constitution, every person who, having been appointed by the Secretary of State, or the Secretary of State‑in‑Council, to a civil service of the Crown in India, continues, after the Constitution Day, to serve under the Federal Government or the Government of a Province, shall be entitled to receive from the Federal Government or the Government of the Province, which he Is from time to time serving, the same conditions of service as regards salary, allowances, leave and pensions and the same rights in disciplinary matters, or rights as similar thereto as the changed circumstances may permit, as he was entitled to receive immediately before the Constitution Day." The Classification and Control Rules were also continued in force by Sub‑Article (1) of Article 224 thereof with necessary adaptations. The contention that since after the Indian Independence Act of 1947 the "individual judgment" of the Governor‑General had disappeared, the Governor‑General had no longer any right to deal with an appeal which formerly could be decided by him in his individual judgment, does not, in our view, amount to an abrogation of the right of appeal assured to a civil servant. The only possible effect that this could have was that though the right of appeal still subsisted, the appellate authority would be the Governor‑General acting upon the advice of his Ministers. The above examination of the relevant provisions of law applicable to the respondent's case leads us to the conclusion that the view taken by the High Court as to the right of appeal of the respondent was correct, and the appeal of the respondent under the changed circumstances brought about by the Indian Independence Act, 1947, lay to the Governor‑Genera and that the Establishment Division of the Central Government was clearly wrong in taking the view that no appeal lay to the Governor‑General. The appeal, therefore, that was preferred by the respondent in August 1951, remained un disposed of, even on the date that the writ petition came up for hearing and the High Court would have been acting well within Its jurisdiction if it had directed that the appeal should be placed before the President of Pakistan, who had since succeeded to the Governor‑General, to be decided by him in accordance with law. But even after coming to this conclusion we are constrained to observe that the order actually passed by the High Court was not an appropriate order. The scope and nature of a writ of certiorari were explained in some detail by this Court in the case of Tariq Transport Company v. Sirgodha‑Bhera Bus Service and others (P L D 1958 S C (Pak.) 437). The writ of certiorari, as therein pointed out, does not lie for the quashing of any and every kind of order. One of the essential conditions necessary for the issuance of a writ of this nature is that the person or authority, whose order is sought to be quashed by a writ of certiorari, must be shown to have been Impressed not only with a legal authority to determine questions affecting the rights of persons but also with a duty to act judicially. The order complained of was clearly not based on any judicial or quasi‑judicial pro ceeding, for, there was no us in any sense of the term which the Governor of Punjab was called upon to adjudicate upon. The remedy by way of a writ of certiorari was, therefore, clearly inappropriate for the quashing of a purely administrative or executive order. The supposed hardship, which impelled the High Court to adopt this unusual procedure of granting a writ which was neither asked for nor applicable in the facts of the case, was neither real nor substantial. The respondent was, in fact, re‑employed for a further period of three years and even if he was not so re‑employed, the consideration of the appeal filed by him could not have been thereby rendered meaningless, for, relief In the fullest measure could have been granted to the respondent even, after his retirement. In any event, we consider that it was quite inappropriate to create bad law to meet a hard case. in the circumstances, we are of the opinion that this appeal must be allowed to the extent that the writ issued by the High Court must be recalled and in its place and stead a writ of mandamus do issue directing the Provincial Government to forward the appeal of the respondent to the President of Pakistan for his consideration. Having regard, however, to the fact that on merits the appeal has not succeeded, we make no order as to costs. A. H. Appeal allowed.