P L D 1966 Supreme Court 99 (PLP)

(b) Constitution of Pakistan(1962), Art. 177(1) (b) "Reduction in rank"‑Reversion from "officiating" to "substantive' position does not involve to "reduction in rank"‑[Officiating Join Secretary, Public Health Department, West Pakistan Government, reverted to post of Regional Director, Health Services]. (c) Constitution of Pakistan (1962), Art. 98‑Writ-Quo warranto ‑ Expression raises question by what "warrant" a public office is held--"Lawful authority" behind an appoint went‑Decision given by High Court may be such "warrant" or "authority"‑[K. M. Sana v. West Pakistan Government P L D 1962 Lah. 509 mentioned.] (d) Constitution‑of Pakistan (1962), Art. 178(2) (b)‑Service Rules‑Letter of Chief Secretary does not have force of statutory rule. (e) Government servant‑Letter of Chief Secretary, West Pakistan Government, dated 18‑6‑1963‑Officers of the "concerned Department"‑Contract officer in Department of Public Health is an officer of "concerned Department" in matter of selection. Elahi Chauhan Senior Advocate Supreme Court (Muhammad Ali Zaidi Advocate Supreme Court with him) instructed by Kamal Mustafa Bokhary Attorney for Appellant. M. A. Zullah Advocate Supreme Court instructed by Maqbul Ahmad Attorney on behalf of Ijaz Ali Attorney for Respondents. Dates of hearing: 26th and 27th April 1965. CORNELIUS, C. J. This appeal by special leave is brought by Dr. Muhammad Amin Durrani, a member of the Class I Medical Service of the West Pakistan Government, to call in question an order made in limine dismissing a petition which he had brought against the West Pakistan Government and Col. K. M. Sana, purporting to be under Article 98 of the Constitution of Pakistan and seeking the following remedies, namely, that the appointment of Col. K. M. Sana by the aforesaid Government to officiate as Joint Secretary, Public Health Department, was against law and therefore of no legal effect, and further that the transfer of Dr. Durrani from the said post before the expiry of his tenure, and "in order to accommodate Col. K. M. Sana" was similarly bad in law and also for an additional reason, namely, that he was being appointed to a post carrying lesser emoluments than that of Joint Secretary and therefore, that he was being reduced in rank. The High Court dismissed the petition on the following grounds. Firstly, Dr. Durrani was holding the post of Joint Secretary from which his transfer had been ordered, only in an officiating capacity and the law was clear that deprivation of an officiating appointment and reversion to the incumbent's substantive appointment does not involve reduction in rank. The learned Judges were unable to find any basis for thinking that the transfer had been ordered either to favour Col. K. M. Sana or to accommodate him. They were also unable to find that Dr. Durrani's new post would necessarily carry lower emoluments than those of a Joint Secretary, since he had not been assigned to any post after being relieved of his officiating appointment as Joint Secretary. (Since then, Dr. Durrani has been posted as Regional Director, Health Services, Sargodha Region, and it seems the emoluments of this post are in fact lower than those of a Joint Secretary). Further, it was clear that the post of Joint Secretary was a selection post and no person in Class I, Medical Service, could claim promotion to that post as of right. The learned Judges rejected the contention of Dr. Durrani that he had a superior claim to that of Col. K. M. Sana by reason of seniority. Another objection raised was that Col. K. M. Sana did not belong to the Provincial Medical Service, and under the rules, no person not belonging to that Service could be appointed as Joint Secretary. The learned Judges found that there was no rule to this effect, and further that they had not been shown anything which would bar the Provincial Government against appointment of a contract officer, such as Col. K. M. Sana, to the post of Joint Secretary. The point was raised before them that by the appointment of Col. K. M. Sana to a Joint Secretary's post, Dr. Durrani's conditions of service had been adversely affected. The learned Judges referred on this point to Article 98 of the Constitution, which provides that no order under that Article can be made "on application made by or in relation to any other person in the service of Pakistan in respect of his terms and conditions of service, except a term or condition of service that is specified in this Constitution." Holding that the subject‑matter of the petition was merely the removal of Dr. Durrani from his officiating post of Joint Secretary, which did not amount to reduction in rank, and further that no bar appeared against the appointment of Col. K. M. Sana to that post, the learned Judges dismissed the petition. Before us, Mr. K. E. Chauhan, for the appellant, admitted that there was no jurisdiction under Article 98 to enforce conditions of service of public servants. The Article confines the jurisdiction in this respect to the enforcement of such terms and conditions as are specified in the Constitution. Mr. K. E. Chauhan made no attempt to bring his client's case within this provision. Specification of terms and conditions of service for the purposes of Article 98 will be found in scattered Articles. Thus, there is specification in respect of Judges of the Superior Courts, and in Articles 149 and 150, there is similar specification in certain respects, in relation to the Chief Election Commissioner. Article 178 in subsection (2) requires that the terms and conditions of public servants shall be as prescribed by rules, except in the case of "persons whose terms and conditions of service are specified in this Constitution." By subsection (3) of this Article, the Constitution requires that such rules should provide that once appointed, the terms and conditions of a public servant are not varied to his disadvantage, in so far as they relate to remuneration or age fixed for superannuation, and this may possibly be regarded as specification for the purpose of Article 98, but it is clear that nothing which has happened in the present case falls within the description of a violation of a term or condition of service so specified. That conclusion is sufficient to dispose of his claim to the appointment on the basis of his position in the Provincial Medical Service. There are additional reasons as well. He was not holding the post of Joint Secretary substantively, but only Amin in an officiating, that is to say, tentative capacity; in which it was within the discretion of the Provincial Government to retain him as long as it pleased it has been held in a number of cases by the Supreme Court that deprivation of an officiating position and reversion to the substantive position on which the incumbent holds a lien, does not involve reduction in rank, so as to attract the provision in the Government of India Act, 1935, and the Constitution of 1956, regulating the exercise of the power of the Government in respect of orders involving reduction in rank of a Government servant Mr. K. E. Chauhan sought to base his client's case rather on a challenge to the appointment of Col. K. M. Sana under the principle of quo warranto, than upon any claim to a particular post by his client, under the terms and conditions applicable to him .The clear position in the case is that the two officers concerned are working in the same Department, that is to say, the Provincial Health Department, and the argument appears to rest on the view that for public servants to challenge each other's appointments to particular posts, is permissible under qua warranto. The expression `quo warranto' raises the question by what warrant a particular public office is held and this goes to the lawful authority behind the appointment. The power of making appointments, to posts is vested in the Government, to be exercised directly or under delegations, made in compliance with law. Where the challenge is not raised to the exercise, in this respect, it would, in most conceivable cases, rest on allegations of non‑compliance with statutory rules, or on violation of the terms and conditions applicable to the contestants. Where such violation is not of a term or condition "specified in the Constitution" the relief under Article 98 is barred, and the petitioning public servant must be content with an appeal to the executive authorities. In the present case, it is clear that no "specified" terms and conditions are involved. Dr. Durrani's intention of gaining benefit for himself by seeking enforcement of certain non‑"specified" terms arid conditions of service, which is apparent from the wording of his petition, cannot therefore, be allowed to succeed. It remains to consider whether Dr. Durrani can rely on violation of any statutory rule having the force of law. The facts relating to the appointment of Col. K. M. Sana in an officiating capacity to the post of Joint Secretary have been placed before us by Mr. K. E. Chauhan and appear also from the paper‑book of the case, and the published judgment of the High Court of West Pakistan in the case K. M. Sana v. West Pakistan Government (PLD 1962 Lah. 509) to which reference was made. Whereas Dr. Durrani was promoted for the first time from an inferior post to officiate in a post in the Class I Service on the 8th September 1947, and was finally confirmed in such a post on the 1st June 1955, Col. K. M. Sana joined the Indian Medical Service, which was an Imperial Service superior in all respects to Class I Provincial Service, in the year 1939. By the year 1952, Col. K. M. Sana had been promoted to the post of full Colonel in the Indian Medical Service and there can be little question that such an appointment was in all respects superior to a post such as that of Civil Surgeon Class I in the Provincial Medical Service. That is to say, three years before Dr. Durrani was even confirmed in a Class I post, Col. K. M. Sana had reached a very high rank in the Pakistan Army Medical Corps, which had replaced the Indian Medical Service in 1947. He was appointed Director of Health Services of the former State of Bahawalpur in 1954 on secondment from the Army and upon the establishment of the West Pakistan Province, in which the State of Bahawalpur was incorporated, in the year 1955, he continued to work in a similar status at Bahawalpur as a West Pakistan Government officer on an ad hoc basis. In the Health Service, on the civil side, the post of Director is undeniably superior to that of Civil Surgeon, in which Dr. Durrani was eventually confirmed on the 1st June 1955. In 1956, Col. K. M. Sana was permitted to retire from the Pakistan Army Medical Corps, but in direct continuation, remained in the employment of the West Pakistan Government. Certain controversies arose as to his appointment, and he was obliged to have the matter clarified by a writ petition in the High Court. A judgment was awarded in his favour by a Division Bench in the year 1962, in the case cited above. He was granted a declaration that his service under the West Pakistan Government following his retirement from the Pakistan Army Medical Corps was service on contract basis in the status of Deputy Director of Health Service which would continue till he reached the age of superannuation and further that he was "eligible for promotion to the higher post of Director." This judgment was not appealed against, and if "lawful authority" be sought for the subsequent actions of the West Pakistan Government, which are alleged to favour Col. K. M. Sana, it can be found, beyond all doubt or uncertainty, in the order of the High Court. In the grounds of the appeal before us, a point is taken that this judgment is not binding upon Dr. Durrani and may only be used as evidence in the case which he brought. That contention is based on a misconception. The case here is not a matter inter parties, that is to say between Dr. Durrani and Col. K. M. Sana. It is a sufficient answer to the case raised by Dr. Durrani that the Provincial Government acted within its lawful authority. Mr. K. E. Chauhan then raised the point that by a letter of the Chief Secretary, dated the 18th June 1963, a routine had been laid down for the filling of selection posts which had been violated in favour of Col. K. M. Sana. The words used in this letter, which does not have force as a statutory rule are: "Appointments to these (i.e. selection) posts shall be made by the Selection Board through selection on merit from amongst six senior most officers of the concerned Department, who have minimum of 12 years total service experience and also possess the academic and other qualifications prescribed for each class I service, seniority being considered only if the officers are more or less of equal merit." The argument raised was that because Col. K. M. Sana was a contract officer, he could not be regarded as an officer "of the concerned Department". The misconception underlying this argument is plain. It may be that Col. K. M. Sana is not a member of the same Service as Dr. Durrani, but it is abundantly clear that at all material times he was either a member of an appreciably superior Service, i.e. in the Army, or later in Bahawalpur State Service, and in that of the West Pakistan Government, he was serving posts superior to any held contemporaneously by Dr. Durrani. What is material is that he is an officer of the "concerned Department," namely, the Department of Public Health. By order of the High Court, he was held entitled to hold a post of Deputy Director of Health Services, and although as a result of a revision of the Service as a whole, this post is no longer in existence, it is clear that Col. K. M. Sana's right to occupy it with effect from the time when his contract was held to have matured, placed him in a position superior to that of Dr. Durrani with effect at least from the 18th May 1959, as found by the High Court. There is no question then that Col. K. M. Sana is indeed one of the six senior-most officers of the West Pakistan Department of Public Health: It was argued that he did not have a "minimum of 12 years of total service experience". The basis for this argument is that the service was not service in the West Pakistan Class I Medical Service. That argument is not supported by the words of the instruction. Col. K. M. Sana clearly had experience of medical service, mostly, in a much higher capacity than that enjoyed during the corresponding period by Dr. Durrani, for a period which at the time of the impugned order extended to 24 years. Something was said about his academic qualifications, but it is clear that possessing the M. B., B. S. degree of the Punjab University, he has the necessary qualifications prescribed for the Class I Service of, the West Pakistan Medical Service. The fact of his being a, contract officer does not, in any way, bar his appointment to a particular post, although it be a post in a cadre applicable to au1 established service. Instances of the kind are numerous, and the present case has the powerful support of a decision by the High Court in 1962, which is res judicata, not having been appealed against. It is accordingly clear that everything done in respect of Col. K. M. Sana by the West Pakistan Government has been done with lawful authority. The appeal is without force, and we hereby dismiss it with costs. A. H. Appeal dismissed.