P L D 1966 Supreme Court 188 (PLP)

You should therefore give consent in unequivocal terms whether .you want to stick to the place of your present posting foregoing right of promotions, or you would have no objection to serve in any institution of West Pakistan Province in order to avail of the benefit of promotion, etc. Following is the first reply of the respondent to this letter:‑ "Reference your Memorandum No. 2477‑2600/E. I., dated 1st August 1956. I am to state that I want to stick to the place of my present posting and forego my rights of promotion outside Lahore." This reply purports to have been sent on the 15th August 1956, but apparently it had not reached the office of the Director, Health Services, by the 28th August 1956, because on that date the following second letter had been sent to the respondent:‑ "Reference this Directorate Memorandum No. 2477‑2600/E. I;, dated the 1st August 1956, on the subject indicated above. Your consent on the above subject is still awaited which may be expedited without any further delay as the matter is most urgent." To the second letter the respondent sent the following reply:‑ Reference your Memorandum No. 2863‑2900/E. I., dated 28th August 1956. I was appointed and recruited to the Staff of King Edward Medical College, Lahore, and prefer to stick to it. Promotions elsewhere would be decided by me if and when they are offered. This supersedes my letter No. A‑7/5642 dated 15th August 1956." The third and final concession that the respondent was appointed to a specific post was made before the High Court. The learned Judges of the High Court say in their judgment: "having had to concede that the petition was appointed to a specific post and that without his consent he could not be transferred to any other post in the Province, the learned counsel for the respondents relying on clause (b) of the proviso to subsection (3) of section 8 of the Establishment of West Pakistan Act, 1955, contended that, in spite of ‑ the terms of the petitioner's appointment, he could be made to serve in any post or capacity and at any place in the Province of West Pakistan". There is a clear concession here that it was not possible to transfer the respondent without his consent and reliance is placed only on the legal provision in the Establishment of West Pakistan Act which, according to the appellants, empowered the Government to transfer the respondent "in spite of the terms of his appointment". As already observed there is no contention before us that this statement in the judgment of the High Court was not correct. There is no allegation either in the concise statement or at the bar that this concession had not been made on behalf of the Government and the Director of Health Services. The post of the Medical Superintendent as provided in the Medical Manual is a specialist post. Had these concessions not been made by the Government a question may have arisen as to whether the respondent though he could not be transferred to any post in the Province could not be transferred at least to a post of the same kind which he was holding, that is, he may have been transferred as a Medical Superintendent of some other Mental Hospital. But the respondent could have been appointed to a "specific post" and not simply in the capacity of a specialist who can fill a particular kind of post. The position taken up by the Government was that the respondent was appointed to a "specific post". The Government has nowhere contended that the respondent was liable to be transferred to a post of the same kind. It has to be accepted therefore that the respondent had been appointed to a specific post and the only question which remains for consideration is whether proviso (b) to section 8 (3) of the. Establishment of West Pakistan Act enables the Government to transfer the respondent in spite of the fact that his appointment was only to a specific post: As a matter of fact this question had been considered by this Court in the order passed on the 13th February 1964, wherein we stated "this proviso was certainly expressed in very wide terms, but it was hardly possible to accepts authorising the Government to require a person appointed as a specialist to a specific post to serve in any other post or capacity whatsoever anywhere else in West Pakistan". However, the matter was not finally decided and it is necessary to consider the matter in full. Section 8 (3) of the Establishment of West Pakistan Act runs as below:‑ (3) All persons in the service of the Crown, serving in connection with the affairs of the specified territories, and all persons holding civil posts under the Government of the State of Bahawalpur, or the State of Khairpur, or the Baluchistan States Union, shall, as from the appointed day, be deemed to be persons serving the Crown in connection with the affairs of the Province of the West Pakistan on such terms and conditions as the Governor of the Province of West Pakistan may determine Provided that‑‑ (a) such terms and conditions shall not be less favourable than the terms and conditions admissible to them immediately before the 10th day of August 1955; and (b) notwithstanding ‑the terms of his appointment in the specified territory, any such person may be required to serve in any post or capacity and in any part of West. Pakistan." The words "specified territories" as explained in section 2 means "the States of Bahawlpur and Khairpur, and the Baluchistan States Union, the Tribal Areas of Baluchistan, the Punjab and the North‑West Frontier and the States of Amb, Chitral, Dir and Swat." In accordance with section 8 (3) the Government of West Pakistan is entitled to determine the terms and conditions of persons who were serving in connection with the affairs of the specified territories on the appointed day, that is, the day on which provisions of the West Pakistan Establishment Act came into force. There are two provisos to this power of the Governor to redetermine the terms and conditions: (i) that the conditions cannot be less favourable than those which were applicable before the 10th August 1955, and (ii) notwithstanding the terms of his appointment in the specified territory any such person may be required to serve in any post or capacity in any part of West Pakistan. Actually the second proviso is only a proviso to the first proviso which says the terms cannot be less favourable than those applicable before the 10th August 1955. It can obviously not be a proviso to the general power of the Governor under the main provision to redetermine the terms and conditions for a proviso is an exception to the rule and the second proviso does not take away from or qualify the power granted to the Governor. It should be clear that the proviso (b) with the applicability of which we are concerned applies only to a post which was being held "on the appointed day" and also that it is only the conditions of appointment in the "specified territory" that cannot be a bar to the transfer of a civil servant. This proviso will have no application to an appointment made after the appointed day when the West Pakistan Province had come into existence nor has the proviso any force in doing away with the terms and, conditions which were operative not in the "specified territory" but the Province of West Pakistan. When we consider the facts of this case we find present each of the two grounds mentioned above which can prevent the application of the proviso. In the first place the post from which it is sought to transfer the respondent is not a post which he was holding on the appointed day. This is a post which came into existence on the 9th of November 1956 for respondent had been appointed "Medical Officer Incharge and Associate Professor of Psychiatry of the Mental Hospital" on 7th April 1955. This post as already stated was abolished on the 9th of November 1956, and two new posts were created, that is, the post of tie Medical Superintendent and the post of the Deputy Medical Superintendent. Suppose the respondent was not in the service of the Government at all on the appointed day and his appointment had been made only on the 9th of December 1956. It is clear that in that case the proviso under consideration would have no application. The position is not different if the post which the respondent was holding on the appointed day was abolished and a new post was created to which the respondent was appointed. Legally there was a fresh appointment to a new post which was not in existence on the appointed day and the position of the respondent was the same as it would have been if he was not in service on the appointed day. It ma) be clarified here that this was not a case of a mere change of nomenclature for there was a distinct change in the nature of duties which had to be performed. As "Medical Officer Incharge and Associate Professor of Psychiatry" the respondent had no administrative duties. When he was appointed Medical Superintendent he took charge of the Administration of the Mental Hospital as well. At the same time although he was Associate Professor Psychiatry also in his first appointment he became a simple Medical Superintendent in the second appointment without any duties as Associate Professor of Psychiatry. It may be that actually he was also teaching Psychiatry for which some payment was being made to him, but there is no order of his appointment as Associate Professor of Psychiatry nor is there, any order of the Government or anything in the Medical Manual to the effect that teaching Psychiatry in the King Edward Medical College is a part of the duties of the Medical Superintendent, Mental Hospital. It seem clear therefore that as a holder of a post which came into existence after the appointed day the respondent is not affected by the proviso under consideration. The second reason for the proviso being inapplicable is that it says: "notwithstanding the terms of his appointment in the specified territory". So it is only the terms of appointment in the specified territory that will not stand in the way of respondent being transferred. The proviso does not say "notwithstanding the terms of his appointment in West Pakistan". If the respondent was pleading that the terms of his appointment in the specified territory prevented his transfer the proviso would be applicable. If on the other hand his contention be that the terms of his appointment to a post in West Pakistan after the appointed day stand in the way of his transfer the proviso is not attracted. The terms of his appointment on which the respondent now relies and can rely are the terms of his appointment of the 9th December 1956, when he .was appointed a Medical Superintendent. The respondent contends that these terms do not permit his transfer. It is this appointment whose incidents we are now considering. We are not concerned at all now with the terms of his appointment as Medical Officer Incharge and Associate Professor of Psychiatry. For this reason too therefore the proviso is, inapplicable. While I have given my own reasons for rejecting the applicability of provisos I am not saying that the reason given by the High Court was not sound. Even if the Government had power of transfer it could waive that power. The effect is the same whether we regard the act of the Government as a simple act of waiver or a redetermination of condition under section 8 (3) of the Establishment of West Pakistan Act. If the Government redetermines conditions and includes in those conditions that a person is appointed to a specific post he will not be liable to be transferred for henceforth it is those conditions which would be applicable and the proviso will not avail to the Government for transferring the civil servant. Apart from this consideration even if it be a simple case of waiver there is no bar to the Government waiving its right of transfer. There was a waiver in the letter of the Government as well as in the letter of the Director of Health Services. In the first reply sent by the respondent he clearly accepted his position to be that of a person who cannot be transferred. In the second too he said that he would stick to his appointment in the King Edward Medical College. He only‑ added that he would consider the question of promotion when it was offered. That does not mean that he accepted his liability to be transferred. Even to a civil servant not liable to be transferred a promotion may be offered and he may accept it thereby renouncing his previous rights, but till he accepts the promotion he retains the previous rights. I would dismiss this appeal with costs. S. A. RAHMAN, J.‑I agree. FAZLE AKBAR, J.‑‑‑I agree. HAMOODUR RAHMAN, J.‑I agree. CORNELIUS, C. J.‑I agree with the order proposed in this case by my learned brother Kaikaus, J. It is not open to Dr. A. A. Aziz to deny that he is a member of the Class 1, Health Service, but that fact by itself does not render him liable to suffer appointment to any post which is open to members of that Service. It is clear that he was originally appointed in 1955 to a specialist post included among the posts reserved for members of that Service, as it existed prior to the integration of West Pakistan, in the Province of Punjab. This was a post relating mainly to the Punjab Mental Hospital at Lahore, in the capacity of Medical Officer‑in‑charge, and was specialised further by its carrying also the duties of Associate Professor of Psychiatry, in the King Edward Medical College at Lahore. The post was of an isolated character, being the only one of its kind in the then Province of the Punjab. When the West Pakistan Province was formed, other Mental Hospitals came within the purview of the new Province, namely, that at Peshawar, where Dr. A. A. Aziz had worked before he accepted appointment to the Punjab Mental Hospital, and that at Hyderabad, to which he was transferred by order in May 1958. He refused to obey that order, taking his stand on the claim that he could not be legally transferred away from the Mental Hospital at Lahore. He challenged the order by means of a writ' petition in the High Court where he succeeded in obtaining a direction to the Government of West Pakistan to withdraw the order and not to appoint him to any post other than that of Medical Superintendent of the Punjab Mental Hospital at Lahore. The Provincial Government relied on proviso (b) to section 8(3) of the Establishment of West Pakistan Act, 1955, in support of the order of transfer. This subsection had the effect of converting all Government servants in the different Provinces which were being integrated, into servants of the new Province, and by the effect of the proviso, all pre‑existing restrictions as to the places or posts to which, as a servant of a Province which had ceased, to exist, any such servant was either subject or was entitled, were swept away. The conditions of such a person's appointment in any of the merged Provinces were declared not to stand in the way of the exercise by the new Provincial Government of the power to require him to serve "in any post or capacity or in any part of West Pakistan." The terms in which the power is expressed are very wide, but they clearly cannot be used for the purpose, say, of requiring a member of the General Administrative Service to work in the veterinary department, or anything equally absurd. The expression "post or capacity" must be understood in relation to the "notwithstanding" clause, i.e., in relation to the terms of the servant's appointment in the merged Province. In the case of Dr. A. A. Aziz, this restriction was undoubtedly observed, namely, that being a specialist in psychiatry, and a Medical Officer of the Mental Hospital at Lahore, he was being required to serve in a similar capacity at another place in the new Province, namely, Hyderabad, and this would be within the authority of the Provincial Government, subject however to any special conditions applicable in respect of the officer concerned. My learned brother has referred to the action taken by the Provincial Government in 1956, following after the integration, in respect of "the professors and other specialists recruited for particular institutions," and has found that the post which I)r. A. A. Aziz claims that he is entitled to hold is one which was given to him on the 9th November 1956, and was different in character from that which he was holding on the date of the ; merger of the Provinces. Proviso (b) to section 8(3) of the Act ‑in question has the effect of excluding the operation of "the terms of his appointment in the specified territory." that is to say in the Punjab only, and I agree with my learned brother that it is not that term which Dr. A. A. Aziz is seeking to enforce. If however, the case be that his appointment on the 8th November 1956, in the capacity of Medical Superintendent of the Mental Hospital at Lahore should be treated as one which is outside the scope of proviso (b) to section 8(3) aforesaid, he would nevertheless remain subject to the general power of the Provincial Government to make use of his services in any post within the West Pakistan Province of the character which he was occupying, unless there were in existence a legal restraint upon the exercise of that power. My learned brother has found that by the Provincial Government's letter of the 30th July 1956, to the Director of Health Services and the succeeding correspondence which ended with a firm declaration of choice by Dr. A. A. Aziz to stick to his present posting and, in consideration, to forego his rights of promotion outside Lahore (vide his letters of the 15th August and the 4th September 1956), the effect is produced that the Provincial Government waived its power under section 8 (3), proviso (b) above, to appoint Dr. A. A. Aziz to any post in the Province of their choice, or in the alternative that it amounted to re‑determination of conditions in his case. I would prefer to look at the matter in a slightly different light, that is to say, rather as one falling within the regulation of an established service, than as a case of a special contract. The letter of the 30th July 1956, is clearly general in its scope, and relates to all "professors and other specialists recruited for particular institutions." It states that the Government had been given legal advice to the effect that if an officer were appointed to a particular institution, his appointment would be "governed by the terms and conditions on which the post held by him was advertised." The Government accepted this legal advice and came to the conclusion that its discretion was "very much fettered" so that these "professors and other specialists recruited for particular institutions cannot be shifted to institutions other than those for which they were actually recruited without their consent." Whether or not the legal advice which the Government received was accurate, the fact that remains that it was adopted, and in order conceivably to minimise the number of such persons, and thus to free the hands of the Government in regard to their postings to the maximum possible extent, the administrative device was adopted of requiring the Director of Health Services to make enquiry from each such official "whether they would or would not like to be borne on the Provincial list intended for West Pakistan as a whole, so as to be considered for promotions and transfers according to their seniority." It was desired that they should be "informed in unequivocal, terms that in case they want to stick to the College or the institution for which they were originally recruited, their claims for higher posts cannot be considered by Government pari passu with their colleagues serving in other institutions and borne on the West Pakistan Provincial List". In compliance with this direction, a reference was made to Dr. A. A. Aziz, and as already stated, he replied in unequivocal terms that he preferred "to stick to the place of my present posting." This he said in his letter of the 15th August 1956, and he repeated it in his letter of the 4th September 1956. His saying in the latter that he would decide about promotions "if and when they are offered" clearly excludes reservation of any claim of right to promotions within the Service in the ordinary way. In my view, the effect of the letter of the 30th July 1956, which related to all professors and other specialists recruited for' particular institutions" coupled with the action taken thereunder is no less binding upon the Government than if these matters had E been incorporated in the Rules of the particular Service. The absence of formal embodiment in the shape of a rule and publication in the Government Gazette does not operate to render these instructions any the less obligatory upon the Government. In somewhat similar circumstances it was held in the case, Pakistan v. Sheikh Abdul Hamid (1)PLD1961SC105, that certain instructions of general application, expressed in the form of an Office Memo randum, being final instructions intended to regulate the absorption into the Ministerial Establishment of a great number of persons, were of binding effect as against the Government notwithstanding that the Office Memorandum had not been incorporated into the Ministerial Establishment Rules. The right which Dr. A. A. Aziz claims under these instruc tions is one which he has had to forego certain other rights in order to secure for himself. Those instructions were applicable to a considerable number of other persons besides Dr. A. A. Aziz, and were sufficiently general, and in their expression sufficiently specific, to have the effect of binding the Government in regard to the exercise of its powers of appointment of the officers concerned, within the Service to which they belonged. The appeal should accordingly be dismissed, with costs to Dr. A. A. Aziz. A. H. Appeal dismissed.