P L D 1959 (W (PLP)

ORTCHESON, J.‑This petition by Mr. Ahmad Ali Dhakan, Deputy Registrar, Co‑operative Societies, West Pakistan, was originally filed against the Province of West Pakistan, through the Chief Secretary, as Respondent No. 1 and Mir Ali Ahmad Khan Talpur, then Minister for Co‑operation, West Pakistan, Lahore, as Respondent No. 2, but in the course of arguments before us Mr. Chundrigar for the petitioner submitted that as Mr. M. H. Shah, at present Registrar, Co‑operative Societies, West Pakistan, is vitally interested in the result of the petition, it was necessary, in order effectually and completely to adjudicate upon and settle all the questions involved, that he be made a party. He accordingly applied that Mr. Shah be added as Respondent No. .3 in the petition, which prayer was granted by our order of the 16th of April, 1959.

2. The petitioner's case is that he was appointed Registrar, Co‑operative Societies in the former Province of Sind with effect from the 8th of June 1948 in the pay scale of Rs. 700‑50‑1,250 and was confirmed in that post with effect from the 3rd of June, 1949. In May, 1955, his pay was revised and fixed at Rs. 1,400 per mensem. On the establishment of the Province of West Pakistan all services in the former Provinces of the Punjab, Sind. N.‑W. F. P. and other administrative Units were, according to the petitioner, amalgamated into one cadre, the seniormost incumbent being appointed as head of the Department. The petitioner's grievance is that in spite of his being the seniormost officer and drawing the highest pay in the Co‑operative Depart ment of West Pakistan, Mr. Riazuddin Ahmed, C. S. P., was given the post.

3. The petitioner places reliance on section 8 of the Establish ment of West Pakistan Act, 1955. Subsection 3 of that section provided that all persons in the service of the Crown (now the State), serving in connection with the affairs of the specified territories, and all persons holding civil posts under the Govern ment of the State of Bahawalpur or the State of Khairpur, or the Baluchistan States Union, should, as from the appointed day, be deemed to be persons serving the Crown in connection with the affairs of the Province of West Pakistan. The same subsection laid, down that the said service should be on such terms and conditions as the Governor of the Province of West Pakistan might determine, but a proviso was added, clause (a) of which is to the effect that such terms and conditions should not be less favour able than the terms and conditions admissible to the persons concerned immediately before the 10th day of August, 1955. According to the petitioner he has, as a result of the appointment of Mr. Riazuddin Ahmed and Mr. Shah in place of himself to the post of Registrar of Co‑operative Societies, West Pakistan, been reduced in rank, stains and emoluments. As examples of such reduction he cites the following : ‑ (i) he was appointed and designated as Deputy Registrar as against his former designation of Registrar ; (ii) he has ceased to be the head of the Department ; (iii) although the powers of the Registrar have been vested in him by a Government Notification, he can exercise them only under the control of the Registrar, and the powers may be withdrawn at any time ; (iv) he will lose the special pay of Rs. 300 per month attached to the post of Registrar, Co‑operative Societies. West Pakistan. (v) his pension will be reduced in two respects : on the one hand, the special pay referred to in (iv) above would have counted towards pension, and on the other, he was entitled to an additional pension of Rs. 1,500 per annum as a permanent incumbent of the post of Registrar, Co‑operative Societies, Sinn. (vi) the rate of daily allowance which he 'formerly enjoyed has been reduced.

4. The petitioner contends that he suffered a similar reduc tion in rank and status in consequence of the appointment to the post in dispute of Mr. M. H. Shah, Respondent No.

3. According to him, his misfortunes stem from his having incurred the displeasure of Mir Ali Ahmad Khan Talpur, Respondent No. 2, for the reasons set forth in the affidavit appended to the petition. In other words, the petitioner alleges that the action taken against him by Government is mala fide, and further, that no notice was given to him to show cause against his reduction in rank. Finally, he states that he made a representation to the Chief Secretary to the Government of West Pakistan in October, 1955, setting out his grievances but has received no reply, which he describes as "a refusal by conduct".

5. On the above grounds the petitioner prays (or rather, prayed, the petition having been filed in February, 1958), for the following reliefs :‑ (i) directions, orders or writs in the nature of certiorari and/or mandamus and/or any other appropriate writ, order or direction to Respondent No. 1 to appoint the petitioner Registrar, Co‑operative Societies, West Pakistan, and not to appoint him to any post lower in rank, status, emoluments, rights and privileges thereto. (ii) costs of the petition from the respondents. (iii) any other relief or reliefs which this Court deems fit and proper.

6. The original two respondents filed counter affidavits. As Mr. Shah was only made a party at the stage of arguments, he was unable to do so, but besides adopting the position of Mr. Abdul Kadir Shaikh, Assistant Advocate General, who represents the Province of West Pakistan, he added a few observations of his own.

7. The Province of West Pakistan, Respondent No. 1, admits that, as alleged by the petitioner, on the integration of the Provinces and the amalgamation of the various services into one cadre, the seniormost incumbent was in many cases appointed as head of the Department, but contends that this was done only if the seniormost provincial head of a Department was considered fit for the new post, and that the claims of other officers for appointment as heads of departments were also taken into consideration. With respect to the post now in dispute, respon dent No. 1 states that at the time of integration of the post of Registrar, Co‑operative Societies Punjab was borne on the C. S. P. cadre, while in the N.‑W:. F. P., although the corresponding post was not borne on the said cadre, it was occupied by a C. S. P. officer. It is also mentioned that in the then Province of East Bengal the post of Registrar, Co‑operative Societies, was borne on the C. S. P. cadre and held by Mr. M. H. Shah, now res pondent No.

3. The object of stressing these facts is apparently to show that it was entirely exceptional for the post of Registrar, Co‑operative Societies, in a Province to be held by a person who was not a member of the Civil Service of Pakistan.

8. Respondent No. 1 also states that at the time of integra tion, the Council for Administration of West Pakistan left it to the Government of the new Province to fill the post of Registrar, Co‑operative Societies in the manner it thought best. It is denied that the petitioner has been reduced in rank, Respondent No. 1 contending that he could be appointed to any post. or in any capacity so long as the terms and conditions admissible to him were not less favourable than those he enjoyed on the 10th of August, 1955. In this connection it is alleged that the petitioner's terms and conditions of service were left untouched, only his designation being changed. In spite of this assertion, the res pondent admits that the rate of travelling allowance formerly admissible to the petitioner was reduced in consideration of the fact that he is no longer Head of the Department, and consequently "is not expected to incur additional expenditure incidental to the office".

9. On the question of pension, Respondent No. 1 states that an assurance has been given to the petitioner that he will be entitled to the special additional pension due to a confirmed Registrar of Co‑operative Societies, Sind, provided he otherwise satisfies the conditions laid down in the Sind Civil Services Rules. In support of this assertion Mr. Shaikh produced, in the course of arguments, a copy of Memorandum No. 58 C/56, dated the 24th April,. 1958, from the Secretary to Government, West Pakistan, Social Welfare and Local Government Department, to the address of the petitioner.

10. Respondent No. 1 denies that the petitioner has suffered a loss of the special pay of Rs. 300 attached to the post in dispute, arguing as he was never appointed to that post, no question of loss of special pay or consequent loss of allowances arises.

11. The allegation of the petitioner that his claims even for the subsequently created post of Joint Registrar Co‑operative Societies, West Pakistan, were ignored is denied, the respondent stating: "the petitioner's claims for the post of Joint Registrar, Co‑operative Societies, was considered by the Selection Board, Government of West Pakistan (Annexure C). In view of his unsatisfactory service record and conduct, he was considered unfit for the post of Joint Registrar. There had been an enquiry pending against the petitioner since 1956. He has since been suspended and charge‑sheeted (copy of the charge‑sheet at Annexure D)".

12. In conclusion, Respondent No. 1 contends that the petitioner could not claim the post of Registrar, Co‑operative Societies as a matter of right, that his case was given full consideration, and that the only reason for failing to appoint him is that he was not fit for the post in question.

13. The counter‑affidavit filed by Mir Ali Ahmad Khan Talpur, Respondent No. 2, consists in essence of a denial of the petitioner's allegation in paragraph 13 of the petition that he has been the victim of Respondent No. 2's displeasure.

14. The petitioner's case in respect of respondent No. 2 may first be considered. Briefly, it appears to be that the appointment of Mr. Shah as Registrar, Co‑operative Societies, West Pakistan, in preference to the petitioner was the result of the personal and adverse influence of respondent No. 2, who had shortly before, in July 1957, been sworn in as Minister in the West Pakistan Cabinet, his portfolio being that of Co‑operation.

15. In order to see whether this contention of the petitioner has any force, the procedure for appointment to the post in dispute must be examined. Section 16 of the Rules of Business of the Government of West Pakistan, framed under section 59 of the Government of India Act, 1935, for the conduct of business of the Government of West Pakistan, provides that appointments and promotions to the posts specified in Schedule III to the said Rules shall, unless filled through the Public Service Commission be made on the advice of a Selection Board consisting of (1) The Chief Secretary, (2) a member of the Board of Revenue, (3) a Secretary to the Government nominated by Government for one year at a time and (4) the Secretary of the Department concerned with the case, as co‑opted member. The point for consideration is who was the Secretary of the Department concerned ? Rule 2 (iii) of the Rules of Business defines the term "Attached Departments"' as meaning the departments mentioned in column I of Schedule II. The Co-operatives Societies Depart ment is entered at item 7 of column 1 of said Schedule. The Co‑operative Societies Department is, therefore, an attached. department within the meaning of rule 2 (iii). Item No. 8 of Schedule III of the Rules of Business, which schedule specifies the pasts to be filled : on the advice of the Selection Board, shows that the post of head of an attached department concerns the Services and General Administration Department. The "Secretary of the Department concerned with the case" within the meaning of rule 16, is, therefore, the Secretary, Services and General Administration Department, and not the Secretary of the Depart ment of Social Welfare and Local Government. Respondent No. 2 as Minister of Co‑operation, had, therefore, no direct voice in the selection of the Registrar, Co‑operative Societies. Moreover, even had he been in a position to influence the Secretary of the Department, he could exercise no such influence on the remaining members of the Board, who were senior and responsible officers. I am, therefore, of the opinion that the contention of the petitioner that he has been the victim of personal spite on the part of respondent No. 2 is entirely without substance.

16. As against respondent No. 1, the case of the petitioner hinges on the interpretation of proviso (a) to subsection (3) of section 8 of the Establishment of West Pakistan Act, 1955, which lays down that the terms and conditions: of all persons serving the Crown iii connection with the affairs of the Province of West Pakistan shall not be less favourable than the terms and con ditions admissible to them immediately before the 10th day of August 1955. It will be seen that the wording of the proviso is negative in form, and in my opinion the negative character of the guarantee is not confined to the form, but extends also to the content, its object being not to confer on those concerned any positive advantage from integration, but merely to ensure that as a result of the creation of the new Province of West Pakistan, the terms and conditions of service enjoyed should not be less favour able than they would have been if integration had never taken place. The petitioner is accordingly not entitled to argue that the guarantee contained in the proviso in question confers on him the right of appointment to the newly created post of Registrar, Co‑operative Societies, West Pakistan.

17. The matter may also be looked at from another angle, The terms and conditions of service of the petitioner are contained in the Sind Civil Services Rules Manual (no other rules governing the petitioner's terms and conditions of service were cited before us), and unless the prospects of appointment to the post in dispute are dealt with in the said Manual, the petitioner cannot take) advantage of the proviso on which he relies.

18. It is clear that the petitioner considers appointment to the newly created post to be in the nature of promotion since, in the representation forming annexure I to his petition, he states the Council of Administration for West Pakistan in its instructions circulated to the Departmental Committees have reiterated the guarantees held out to services in respect of prospects of promotion. As against these guarantees, the appointment of Registrar, Co‑operative Societies, West Pakistan, has been made from C. S. t'. Cadre ignoring the claims of the departmental services who by academic qualification and experience are com petent to hold the post". The only references to promotion in the Sind Civil Services Rules Manual (according to the index to that compilation) are contained in rules 68, 165 and 337, none of which is in point. Rule 68 merely provides that a competent authority may allow officiating promotions in the place of Govern ment servants undergoing training in cases in which it has been authorised by Government to do so. Rule 168 is to the effect that, without the previous sanction of Government, no promotion whether acting or substantive in a permanent or temporary establishment should be given to a Government servant who is under extension. The relevant portion of rule 377 is the nature of an instruction providing that the travelling allowance of a Government servant who is promoted or reverted with retrospective effect should not be refused except when a notification implies a change of duties. These sections do not help the petitioner, and it is obvious that the terms and conditions of service applicable to an. officer serving in the former Province of Sind cannot cover the case of promotion to a post outside the cadre in which the petitioner was serving, which post neither existed nor was even contemplated at the time the petitioner entered Government service.

19. Another argument of the petitioner is contained in paragraph 6 of the petition, and may be quoted verbatim :‑ "That the seniormost Head of Department from one of the Provinces was appointed. as Head of Department in the Province of West Pakistan, e.g., Inspector General of Police, Chief Conservator of Forests, Chief Engineer (Operation), Chief Engineer (Construction), Rehabilitation Commissioner, etc., the Heads of Department from another Province next in seniority were appointed Additional Inspector‑General of Police, Chief Conservator of Forests, etc., but the petitioner was posted as Deputy Registrar, Co‑operative Societies (Marketing), a post where officers drawing pay in the scale of Rs. 600‑1150 are posted. Copy of the orders of posting are annexed hereto and marked `F' ". Annexure `F', referred to above, is a copy of Memorandum No. 876‑S(I)/55, dated the 7th of October 1955, issued from the Civil Secretariat Lahore, listing the appointments of a number of officers belonging to the Province of Sind to the Secretariat and Departments of the Government of West Pakistan. The reply of respondent No. 1 to this contention of the petitioner is that the appointment of one of the Heads of a particular Department in the integrating units to the corresponding post under the West Pakistan Government was made on the basis of seniority cum fitness, posts of additional Heads of Departments being filled on the same basis. The remaining Head or Heads of the Department in the integrating Provinces are stated by the respondent to have continued to head the Region in which they were serving, their 'designations being, however, changed. With respect to the petitioner, it is stated that he was appointed regional Head and designated Deputy Registrar as he was not considered fit for the post of Registrar, Co‑operative Societies, West Pakistan.

20. The question of the petitioner's fitness for the post in dispute is one for Government itself to decide, and, in the absence of any proof of male fides, its decision is not open to question by this Court in the exercise of its writ jurisdiction. The petitioner no doubt alleges that his rights have been adversely affected "by arbitrary, capricious and manifestly improper and unreason able use of the power of respondent in depriving the petitioner of his legal right to be appointed Registrar, Co‑operative Societies, West Pakistan". More specifically, he alleges that he incurred the displeasure of respondent No. 2, but I have already held that this allegation is not, substantiated, and it is further obvious that as respondent No. 2 was only appointed Minister for Cu‑operation in July 1957, he could have had no influence on the appointment of Mr. Riazuddin Ahmad at the time of integration in 1955.

21. It must also be borne in mind that the claims of the respective Heads of Department in the old Provinces to be appointed to the new post could only fairly be compared if they had been appointed to the posts they were holding before integra tion on a common or similar basis, but that condition has not been fulfilled in the present case. As pointed out by respondent No. 1 in paragraph 3 of his counter‑affidavit, at the time of integration the post of Registrar, Co‑operative Societies, Punjab, was borne on the C. S. P. cadre, while the Registrar, Co‑operative Societies, N.‑W. F. P., was also a C. S. P. officer though the post itself was not borne on the cadre of that service. The pay and seniority of these two officers vis a vis the petitioner consequently form no fair criterion for deciding their respective claims. It was also brought to our notice at the time of arguments that there was a marked disparity in the importance of co‑operative work in the former Punjab and the former Sind. For the year 1955‑56 the Punjab budget under the head of "Co‑operation" was 19.15 lakhs as against 4,75 lakhs in Sind, while the number of Co‑operative Societies in the two Provinces was 16,684 and 352 respectively.

22. For the above reasons I hold that the petitioner could not claim as of right to be appointed to the post in dispute.

23. Another grievance advanced by the petitioner at the time of arguments is that his claims have also been ignored in filling the post of Joint Registrar, Co‑operative Societies, but in the first place this cause of dissatisfaction had not arisen at the time the petition was filed, and secondly, the same argument applies as to the post of Registrar, namely, that the question of the petitioner's fitness for the post is one for Government to decide.

24. The above decision also disposes of the petitioner's argument that in consequence of his non‑appointment to the post of Registrar, Co‑operative Societies, West Pakistan, he has suffered a financial loss of Rs. 300 per mensem, the amount of the H special pay or allowance attached to that post. Since lie had no legal right to be appointed, he could not be considered to have been deprived of the allowance.

25. On the question of his pay, the petitioner his now no cause of grievance. Before integration he was drawing a salary of Rs. 1,400 per month, and, vide Memorandum No. 618‑C & M‑56/20,95, dated the 3rd of March 1956, (annexure C to the petition), the respondent Government revised and fixed his pay at the same amount.

26. The petitioner's contention with respect to his pension rights is two‑fold. He first alleges that he has suffered the loss of the special pay of Rs. 300 per month attaching to the post in dispute, which would have counted for pension. This contention has already been repelled. He further argues that he was entitled to an additional pension of Rs. 1,500 per annum as a confirmed Registrar of Co‑operative Societies Sind. In this connection, Mr. Abdul Kadir Sheikh for respondent No. 1, filed a copy of Memorandum No. 58‑C/56 dated the 24th‑of April 1958 from the Secretary to the Government of West Pakistan, Social Welfare and Local Government Department, to the Registrar, Co‑operative Societies, West Pakistan, Lahore, the relevant portion of which runs :‑ ' "Government have considered the claim of Mr. A. M. Dhakan Deputy Registrar, Co‑operative Societies, Hyderabad (under suspension) and former Registrar, Co‑operative Societies, Sind, to special additional pension and are of the view that he would be entitled to special additional pension as a confirmed Registrar, Co‑operative Societies, Sind, provided he otherwise satisfies the conditions laid down in the Sind Civil Rules. This matter would be decided by Government at the proper time". This undertaking on the part of Government goes as far as the petitioner could reasonably expect.

27. In the course of Mr. Chundrigar's arguments on‑ the question of travelling allowance, Mr. Abdul Kadir Shaikh gave an undertaking that the question would be reconsidered by Government. In this the respondent is wise, since the position taken up in the counter‑affidavit is one that is difficult to justify. On the one hand it is asserted in paragraph 6 (i) that the change in the petitioner's post was one of designation only, and was without any pecuniary disadvantage, it being added : "In fact the area and number of Co‑operative Societies under the jurisdiction of Mr. Ahmad Ali increased as he became in charge of the Co‑operative Societies of the former Khairpur State in addition to the Co‑operative Societies in the area of former Province of Sind". On the other hand, in ‑ pare 6 (vi) the respondent remarks :‑ "It is submitted that under para 1 (a) of Appendix XXIV to the Sind C. S. R. Manual Volume II the higher rate of Daily Allowance of Rs. 10 per day was admissible only to the Heads of Departments. As Mr. Ahmad Ali is no longer Head of the Department and is not expected to incur additional expenditure incidental to the office, the lower rate of Rs. 8‑8‑0 has been allowed to him in accordance with the S. C. S. R. to which he was subject prior to integration. Compensatory allowances are meant to cover the additional out‑of‑pocket expenditure of a Government servant and have to be varied when the functions of the Government servant are performed under different conditions, That Daily Allowance of Rs. 18 per day was admissible to him for his visits to Lahore as Registrar, Co-operative Societies, Sind, under the exception below Rule 422 of the Sind C. S. R. Volume I. This rule applied in case of tours outside the former Province of Sind. Under section 4 of the Establishment of West Pakistan Act, 1955, and the subsequent adaptation laws, in any rule, reference to any specified territory has to be construed as a reference to the Province of West Pakistan. The reference to the Province of Sind in Rule 422 of the S. C. S. R. has, there fore, to be construed as a reference to the Province of West Pakistan and as such the Rule will apply only in case of tours outside the Province of West Pakistan. The exception in rule will thereby be nullified. Even on merits, the position is that when an officer travels within the sphere of executive authority of his own Government, he necessarily spends less on his travelling expenses as Government make adequate arrangements to provide cheap lodging facilities". The respondent should bear in mind that proviso (a) of sub section (3) of section 8 of the Establishment of West Pakistan Act imposes on him a statutory duty to ensure that the petitioner's terms and conditions of service after integration are not less favourable than before: The right to travelling allowance is undoubtedly one of the conditions of an officer's service, and the onus lies heavily on the respondent of showing that the petitioner now incurs less expenditure on his tours than he did formerly, bearing in mind at the same time the categorical assertion that the petitioner has suffered no loss of status as a result of integration.

28. In the later portion of paragraph 6 (vi) of the counter affidavit, the respondent is guilty of a misquotation. Section 4 of the Establishment of West Pakistan Act, 1955, runs as follows:‑ "As from the appointed day any reference in any Act, including the Government of India Act, 1935, and the Indian Independence Act, 1947, or in any rule, regulation, order, bye‑law or public notification to any specified territory shall be construed as a reference to the‑ Province of West Pakistan, or as the context may indicate to a part thereof". In quoting this section, respondent No. 1, either through inadvertence or deliberately, omitted the words underlined, and argued in effect that any reference to the Province of Sind must invariably be construed as a reference to the whole Province of West Pakistan, an interpretation which the context will not always justify.

29. The only other point urged by the petitioner is that hi9 status has been adversely affected. I am not, however, impressed by this argument. It is true that he is not the Head of the Co‑operation Department for the whole of West Pakistan, but this does not amount to a lowering of his old status, his com plaint, if analysed, being not that his former status has been lowered, but that it has not been raised. The petitioner exercises all the powers formerly vesting in him, and though he argues that the said powers can be withdrawn at any time, he forgets that even before integration the powers of the Registrar could be varied or curtailed by Government in the public interest, while the fact that his exercise of the powers in question is subject to the control of an officer of a status higher than that which the petitioner) himself enjoyed before integration cannot be construed as iii lowering of the petitioner's status.

30. In the result the petition fails, but I would pass no order as to costs. WAHIDUDDIN AHMED, J.‑I will dismiss this writ petition on the short ground that the sole Judge of the question whether an officer is fit for a particular job is the appointing authority and that his decision cannot be the subject‑matter of inquiry in a Court of law. This view has been taken by their Lordships of the Supreme Court in a recent decision Province of West Pakistan v. Bashir Ahmed (P L D 1959 S C (Pak.)93). 1 have not been able to find out any right of the petitioner to the post of the Registrar Co‑operative Societies, West Pakistan. There is no doubt in my mind that this post was for the first time created after the creation of the Province of West Pakistan and was a selection post. The only right that the petitioner possessed, being the senior most officer in this department was that his name should have been considered along with other suitable qualified officers. The facts on the record show that on both the occasions when an appointment was made to it the case of the petitioner was also considered and he was not found fit for this job. I am further of the opinion that merely because the Selection Board recommended a junior C. S. P. officer namely respondent No. 3 for the above mentioned post and respondent No. 1 accepted their recommendation it cannot be held that the petitioner has been reduced in rank. The petition is therefore dismissed with no order as to costs. A. H. Petition dismissed.