P L (PLP)

KAYANI, C. J.--‑This is a petition for a writ of mandamus or other appropriate writ by Mr. S. I. Mahbub, Chief Engineer, irrigation, in respect of an order of reduction passed against him in the following circumstances. He belongs to an ex‑Secretary of State's service, having been appointed to the Indian Service of Engineers in 1926. He was promoted as Chief Engineer, Irri gation, Punjab, in February 1948, and confirmed in that post in the following year. In September 1950, the former Punjab Government ordered an enquiry into his conduct under the provisions of the Public Servants Enquiries Act, 1850, and .the Commissioner, who was a Judge of the High Court, was asked to report on the following charges: "(1) That in December 1948 and February and March 1949, you got executed certain repairs of your house, 8‑B Davis Road, Lahore, through Khwaja Nazir Ahmad, officiating S. D, O. of I Project Sub‑Division of II Project Division, Lahore, in the Western Administration and that the cost of these repairs, viz. Rs. 790‑3‑0 was paid by cash and cheque by Khwaja Nazir Ahmad from his own pocket through B. Abdul Hamid overseer of the same Sub‑Division, you yourself having paid nothing for these repairs. "

2. That on 2nd March 1949, you obtained from Khawaja Nazir Ahmad, mentioned in charge No. (1), a cart‑load of bhoosa for your cattle and that its cost, viz. Rs. 115, was paid by the said Khwaja and was included in the cheque for the cost of the above‑said repairs. "(3) That you, in conspiracy with Khan Muhammad Aslam Khan, Sup rintending Engineer, and Syed Ahmad Ali Shah, Executive Engineer, Punjab, P. W. D., Irrigation Branch, got replaced the commendatory "annual report" of Khwaja Nazir Ahmad, officiating S. D. O. (mentioned in charge No. 1) for the year ending with 28th February 1949, recorded by the aforesaid Superintending Engineer and Executive Engineer, by a bad report, which was forged by the said two officers in pursuance of the said conspiracy, with the object of causing injury to Khawaja Nazir Ahmad on account of his having made a statement against you in relation to charges (1) and (2) before the police and in order to create a defence regarding the said charges in case of an enquiry. (4) That during your service in the Punjab P. W. D., Irrigation Branch, you have acquired the following properties valued at Rs. 1,14,500, which is disproportionate to your legal sources of income and which could only have been acquired if you had been dishonest and accepting gratification other than legal remuneration (a) 8-B Davis Road, Lahore, (b) 14, Ferozepur Road, Lahore, and (c) Kashmir Cottage, Jhikagali Road, Murree, District Rawalpindi".

2. The Commissioner reported that charge No. 4 was not proved, that charge's 1 and 2 were proved, except that payment of money by cash and cheque by Khawja Nazir Ahmad was not established, and that charge No. 3 was provod except in respect of the complicity of Khan Muhammad Aslam Khan.

3. In December 1950, the enquiry was concluded and in January following the Punjab Government called upon the petitioner to show cause why he should not be dismissed from service. The petitioner submitted an explanation, and the Punjab Government submitted the record to the Government of Pakistan, which forwarded it to the Federal Public Service Commission for advice. The Commission advised that the finding did not call for any punishment. As regards the first two charges, "taking a very rigid view", observed the Commission, "not more than this could be said, that K. B. Mahbub Ilahi had repairs carried out to his house by asking his subordinates to get these done on his behalf, and that the bhoosa was also probably acquired through a subordinate". As regards charge No. 3, it was, in the opinion of the Commission, not reasonably certain that any forgery had been committed.

4. The Punjab Government, however, accepted the findings of the Commissioner, not the Commission, on facts and ordered the petitioner's reduction to the post of a Superintending Engineer, in addition placing him in the junior‑most position among Superintending Engineers. He was also debarred from becoming Head of Department for five years.

5. This order was passed in July 1951, and in August the petitioner filed an appeal to the Governor‑General, which was forwarded by the Provincial Government in September. In counsel prevented an earlier hearing of the petition‑‑unfortunate because the petitioner is retiring on the 14th of this month.

7. The position taken on behalf of the petitioner is (1) that the enquiry became unconstitutional by reason of the fact that the notice to show cause against dismissal was given to him by the Governor, although a Secretary of State's Service officer could be dismissed, in the absence of the Secretary of State, by the Governor‑General only ; (2) that the petitioner's conditions of service were secured by a guarantee at the time of the Partition that the convention of accepting the advice of the Federal Public Service Commission will continue in respect of his service ; (3) that three punishments could not be combined, if Rule 49 of the Civil Services (Classification, Control and Appeal) Rules were interpreted properly ; (4) that an appeal lay to the Governor-General ; and (5) that if an appeal did not lie, a representation could be made under subsection (5) of section 241, Government of India Act, and it was not in the power 'of the Provincial Government to with hold it.

8. In the view that we are taking, we consider it unnecessary to deal with the first and the third points.

9. As regards the advice of the Federal Service Commission we consider that the Provincial Government has disregarded vital instructions in matters of fundamental importance to the Government of a country, relating as they do to Services which were the pivot of the administration, and if this petition had been heard before the abrogation of the Constitution last, October, Article 170 would have justified the issue of any suitable direction, even if the matter did not fall within one of the standard English writs like mandamus and certiorari ; and if on other points such as the right of appeal, there had not been open a remedy to the petitioner, it would have indeed been unfortunate that the hearing of the petition had been so long delayed.

10. On the 18th June 1947, the Government of India, which was now controlled by Indians, issued a circular (Annexure H) to all officers of the ‑Secretary of State's Services explaining that "the guarantees the Government of India are prepared to give will extend to the following (a) Pay (b) Pension (c) Disciplinary matters.‑The Federal Public Service Com mission will continue to be consulted on all disciplinary matters and the advice of the Federal Public Service Commission will be accepted, save in exceptional circumstances".

11. This was in consonance ‑with the "convention" estab lished by the Government of India, with the approval of the Secretary of State, that in certain classes of cases, which included disciplinary matters, the advice of the Commission will be accepted, save in exceptional circumstances. (Annexure to Annexure G). On the 13th of June 1950, this guarantee was repeated by the Government of Pakistan (Annexure G). "The Cabinet Secretariat, therefore, consider it necessary to draw the attention of all Ministries to the fact that a convention was established by the undivided Government of India, with the approval of the Secretary of State, in regard to the acceptance of the advice given by the Federal Public Service Commission. This convention holds good in Pakistan and it should always be Ka: adhered to." It was further stated that "in the event of a difference of opinion with the Pakistan Public Service Commission, the matter should be referred, before taking a final decision, to the Cabinet Secretariat (Establishment Branch)", and this also was a repetition of the previous convention.

12. The Punjab Government not only violated this con vention ; it did not refer back the case to the Central Government and its attitude to the case is reflected in its refusal to forward the representation also. The security of tenure in public services is of such importance that any action threatening the security has invariably been treated by us with disapproval, and annulled where the process of annulment was open to us.

13. Now as regards the right of appeal, the provisions of the relevant enactment have left us in no doubt that it still exists. The Civil Services (Classification, Control and Appeal) Rules, which were made by the Secretary of State in 1930 under section 96‑B, Government of India Act of 1915, are still in force by the operation of section 276, Government of India Act, 1935, "so far as consistent with" that Act, because no other provision has been made so far. The only provision approaching a rule which could at, all be said to have been made is that the advice of the Federal Public Service Commission should be accepted, and that in the event of a difference the case should be referred back to the Central Government. Under Rule 57 of those rules, a member of an All‑India Service could appeal from the order of a Local Government to the Governor‑General in Council and there was a second right of appeal' to the Secretary of State in Council. Under rule, 59, "the appellate authority shall consider‑ (a) Whether the facts on which the order was based have been established ; (b) whether the facts established afford sufficient ground for taking action ; and (c) whether the penalty is excessive, adequate, or inadequate ; and after such consideration shall pass such order as it thinks proper".

14. There was thus a very substantial right in two appeals to have the facts of the case examined afresh, to determine whether on the established facts any action should have been taken, and to consider the measure of the punishment awarded.

15. Section 10 (2) (b), Independence Act, 1947, entitled an officer of the former Secretary of State's Services to receive "the same conditions of service as respects remuneration, leave and pension, and 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 before the appointed day".

16. Now let us see what change has been brought about in the circumstances of these officers. For this purpose, we have only to refer to section 241, Government of India Act, 1935, as amended on the date of the Partition, and it would be pro fitable to reproduce that section almost in extenso "

241. Recruitment and conditions of service.‑ (1) Except as expressly provided by this Act, appointments to the civil services of, and civil posts under, the Crown in Pakistan, shall be made‑ (a) In the case of services of the Federation, and posts in connection with the affairs of the Federation, by the Governor-General, or such person as he may direct ; (b) in the case of services of a Province, and posts in con nection with the affairs of a Province, by the Governor or such person as he may direct. (2) Except as expressly provided by this Act, the conditions of service of persons serving His Majesty in a civil capacity shall, subject to the provisions of this section, be such as, as may be prescribed‑ (a) in the case of persons serving in connection with the affairs of the Federation, by rules made 'by the Governor-General, or by some person or persons authorised by the Governor‑General to make rules for the purpose ; (b) in the case of persons serving in connection with the affairs of a Province, by rules made by the Governor of the Province or by some person or persons authorised by the Governor to make rules for the purpose ; (3) The said rules shall be so framed as to secure‑ (a) that, in the case of a person who before the commence ment of Part III of this Act was serving His Majesty in a civil capacity, no order which alters or interprets to his disadvantage any rule by which his conditions of service are regulated shall be made except by an authority which would have been competent to make such an order on the eighth day of March nineteen hundred and twenty‑six, or by the Governor‑General or the Governor, as the case may be ; (b) that every such person as aforesaid shall have the ,same rights of appeal to the same authorities from any order which‑ (i) punishes or formally censures him ; or (ii) alters or interprets to his disadvantage any rule by which his conditions of service are regulated ; or (iii) terminates his appointment otherwise than upon his reaching the age fixed for superannuation, as he would have had immediately before the commencement of Part III of this Act, or such similar rights of appeal to such corresponding authorities as may be directed by the Governor‑General or the Governor as the case may be ; (c) That every other person serving His Majesty in a civil capacity shall have at least one appeal against any such order as aforesaid, not being an order of the Governor‑General or a Governor. (4) Notwithstanding anything in this section, but subject to any other provision of this Act, Acts of the appropriate Legislature may regulate the conditions of service of persons serving His Majesty in a civil capacity, and any rules made under this section shall have effect subject to the provisions of any such Act: Provided that nothing in any such Act shall have effect so as to deprive any person of any rights required to be given to him by the provisions of the last preceding subsection. (5) No rules made under this section and no Act of any Legislature shall be construed to limit or abridge the power of the Governor‑General or a Governor to deal with the case of any person serving His Majesty in a civil capacity in such manner as may appear to him to be just and equitable: Provided that, where any such rule or Act is applicable to the case of any person, the case shall not be dealt with in any manner less favourable to him than that provided by that rule or Act".

17. This means that if any rules are made, they will be made by the Governor in respect of persons serving in connection with the affairs of the Province (subsection (2), clause (b) ), but they shall secure that, in the case of a person who, like the petitioner, was in service before 1937, there shall be "the same rights of appeal to the same authorities" from an order punishing him, as he would have had before 1937, "or such similar rights of appeal to such corresponding authorities as may be directed by the Governor‑General or the Governor, as the case may be". The change that was introduced at the time of the Partition in this Part of section 241 consisted in the replacement of the Secretary of State by "the Governor‑General or the Governor, as the case may be". The words "such similar rights of appeal to such corresponding authorities" existed in the original Act also. It would appear that in the case of officers serving in a Province the direction will be given by the Governor, and the direction will be in respect of the '‑corresponding authorities". If the direction is to extend even to the similarity of the right of appeal, which we are not willing to concede, then only the similarity of the right is to be determined. We are unwilling to concede this, because, in determining similarity, it will be an improper direction to reduce the substance of the right of appeal to direct, for instance, that there will be no appeal on facts, or no appeal in respect of certain punishments. The words "similar rights" take the place of "same rights", so far as we can see, because if the appellate authorities become different, the sameness of the right also suffers a change. For it is not exactly the same right if the appeal is heard by a different authority : it is a similar right. But even granting this, we do not see how there can be a direction that there shall be no right of appeal at all, for in that case the entire eloquence of clause (b) of subsection (3) will be wasted, and the guarantee contained in section 10, Independence Act, will become illusory. Then mark the language of subsection (4) of section 241, which enables the appropriate Legislature to regulate conditions of service by an Act, but the proviso says that there should be nothing in such Act which deprives a person of a right "required to be given to him" by the provisions of subsection (3). One of these rights which subsection (3) "requires" to be given is the right of appeal. Now as regards the "changed circumstances" of section 10, it will now be impossible for the Governor to direct and appeal to the Secretary of State, and to that extent Rule 57 of the Classification, Control and Appeal Rules vanishes. The right of appeal to the Governor‑General in Council, however, becomes the right of appeal to the Governer‑General, as "changed circumstances" have taken away the Council, and in the absence of a direction by the Governor by means of a firm rule under section 241, Government of India Act, the Governor‑General continues to be the appellate authority for an officer of the former Secretary of State's Services.

18. Thus the fault in the argument that it is for the Governor now to say whether an appeal shall lie to the Governor‑General or not is twofold : firstly, the direction which the Governor is to give is to be by means of a rule, for sub section (3) of section 241 begins with the words : "The rules shall be so framed as to secure", and all the following clauses are subservient to this provision ; secondly, the best that the Governor can do is to determine the similarity of the rights of appeal and the corresponding authorities, not to do away with the right of appeal altogether.

19. It will be of interest to mention here that in a letter issued by the Establishment Division in 1949 (Appendix III), the former all‑India Services were described as Services "in connection with the officers of the Federation, that is, Services formerly under the rule‑making control of the Secretary of State, and now under the rule‑making control of the Governor‑General", and Chief Secretaries were instructed that in respect of these Services the Commission to be consulted in disciplinary matters under section 266 (3), Government of India Act, was the Federal Public Service Commission. If a service is declared by the Central Government to be "in connection with the affairs of the Federation", it is questionable whether the Province can take any action against its members. But we find it unnecessary to decide this point.

20. Now as regards the right of a person to have his petition forwarded, Appendix IV reproduces a notification of the Cabinet Secretariat, dated the 14th November 1949, which details the circumstances in which petitions tray be withheld. We mention here item (4) and Item (10) which have been relied upon for the Government. "The Provincial Government may, at its discretion, withhold a petition when‑ "(4) the petition is a representation against a decision which is declared to be final by any law or statutory rule ; "(10) the petition is a representation against an order‑ (a) from which the petitioner has exe: cised, or possesses, a right of appeal under‑ (i) rules or orders regulating his conditions of service, or (ii) the terms of his contract of service ; (b) passed by any authority in the exercise of appellate or revisional powers conferred by any rule, order or contract such as is referred to in sub‑clause (a) ; or (c) from which, not being an order of punishment passed by the Governor‑General or an officer appointed by the Governor. General, an appeal is expressly barred by any rule, order or contract such as is referred to in sub‑clause (a)".

21. The Provincial Government, in its letter to the Central Government, dated 15th April 1957, (Appendix I), relied on the following argument: "With regard to the petition (Memorial) the Provincial Government was of the opinion that as was considered by the Government of Pakistan it could be withheld by them in their discretion under certain circumstances. The view could be taken that Mr. Mahbub had either actually exercised his right of appeal, such as was available to him under the rules or orders governing his conditions of service in which case it was open to the Provincial Government to withhold‑his petition or if he had not exercised the right of appeal as no such right was available to him then the decision of the Provincial Government being final, the question of representation against a final order in the form of a petition could not arise. In other words, if sub para 10 of para. 7 of the Instructions regarding the submission of petitions and memorials was considered not to apply, sub‑para. 4 provided adequate justification for withholding it."

22. The argument is that since Mr. Mahbub had appeald, although his appeal was not considered because he had no right of appeal, the right of appeal was exhausted and item 10 applies. But if it does not apply, then since the decision was final under the law, item 4 applies. We have held that the decision is not final. And in any case, a right of representation lies under subsection (5) of section 241, which enables the Governor or the Governor‑General to do equity and justice notwithstanding any rule.

23. But we base our decision on the finding that the petitioner had a right of appeal to the Governor‑General, a very substantial right, and the Governor‑General could, in the exercise of his power under Rule 59, reopen the case entirely, and in the present circumstances, it is not unlikely that he might have acted upon the advice of the Federal Commission.

24. The petitioner has prayed for the quashment of the proceedings or, in the alternative, for a direction that his appeal be heard by the President, as successor to the overnor‑General. His counsel now insists on the first alternative, as the hearing of his appeal after his retirement will be meaningless. It will indeed be futile to give him justice in this form. It is now between seven and eight years that he instituted his appeal, and he is retiring on the 14th of this month. To ask him to pursue his appeal after retirement would be equal to putting him to further hardship. On the assumption that the enquiry against the petitioner was competent, the order punishing him was subject to execution only after the right of appeal had been exhausted and as that right was denied to him, we cannot but hold that the order of punishment remained inexecutable. The only remedy in certiorari is to quash the order, and we do so. The petition is accepted with costs. A. H. Petition accepted.