P L D 1957 (W (PLP)

AKHLAQUE HUSAIN, J.‑

The petitioner, Mirza Afzal Beg, was employed in the Public Works Department, Rehabili tation Circle, as a temporary substantive accounts clerk. By a letter, dated the 19th of September 1956, an order was communicated to him by the Superintending Engineer, Lahore, Rehabilitation Circle, in these words:‑ " Your services are no longer required in this circle with effect from the afternoon of the 19th of September 1956. You should, please make over charge of your post to your Head Assistant. Mr. Muhammad Ibrahim ". The present petition, under Article 170 of the Constitution, impugns the legality of this order on various grounds. It is contended by the petitioner, who appeared in person and argued his own case with remarkable ability, that the order of his discharge‑which he himself insisted upon describing as one of dismissal‑was invalid and of no effect because the Superintending Engineer did not possess the power to dismiss or remove him from service. Admit tedly, the petitioner was about 47 years of age at the time of his appointment in 1951 and was not ordinarily eligible for service in view of rule 3'7 of the Punjab Civil Services Rules which says : " A person whose age exceeds twenty five years may riot ordinarily be admitted into pensionable service under Government ". It is admitted that the peti tioner's service was pensionable. Rule 3.9, however, lays down:‑ Except Except where otherwise expressly provided in the Service Rules, the restriction in Rule 3.7 may be waived in special circumstances by Heads of Departments in the case of non‑Gazetted Government servants ". It is not disputed that the Head of the petitioner's Depart ment was the Chief Engineer and, therefore, it was for him to waive the age limit provided by rule 3.7. It will be noticed that the two rules mentioned above do not relate to appointments. On the 30th of October 1934, the Punjab Government made rules relating to the Punjab Public Works Subordinate Service in exercise of the powers conferred by Rules 20, 44 and 48 (2) of the Civil Services (Classification, Control and Appeal) Rules. The relevant portion of rule 4 is as follows :‑ All appointments to posts in the Service shall be made (b) by the Superintending Engineer concerned in the case of the following posts :--‑ (i) All posts other than that of Superintendent in section III ". It was contended by the learned Assistant Advocate General, appearing for the respondents, that this rule was applicable to the petitioner who could, therefore, be appointed by the Superintending Engineer. But the next rule, namely, Rule 5 provides :‑ " No person shall be appointed to be a member of the service unless‑ (ii) he is not more than twenty five years of age ; provided that the Local Government or the Chief Engineer, as the case may be, may, in special circumstances, appoint a person exceeding twenty five years in age " ; It will thus appear that while the age limit, in the case of the petitioner, could be waived by the Chief Engineer, his appointment could have been made either by the Local Government or the Chief Engineer‑but not by the Superin tending Engineer. By a letter dated the 5th of February 1951 the peti tioner was informed by the Superintending Engineer, Rehabilitation Circle Punjab, P. W. D., B. & R. Branch. Lahore, that he had been appointed as a temporary accounts clerk in the Rehabilitation Circle. This letter also contains the terms of the petitioner's appointment and was endorsed to the Chief Engineer, Punjab, and contains the following endorsement :‑ " No. 672/E, dated 5th February 1951. Copy forwarded to the Chief Engineer, Punjab, P. W. D., B. & R. Branch, Lahore for information. Mirza Afzal Beg, whose application is enclosed, is being appointed as an accounts clerk at Rs. 100 p. m. in the scale of Rs. 100‑5‑125/6‑155 in the circle office and it is requested that sanction to his employment as such may kindly be accorded. He is about 47 years of age and since it has not been possible to recruit young man with desirable experience as accounts clerk, it is requested that sanction to the relaxation of his age limit as required by the note below rule 3'7 read with rule 3.8 of the Civil Services Rules (Punjab), Vol. 1, Part 1, may kindly also be accorded. Superintending Engineer ". By the letter.No.139/47/2293, dated the 3rd of March 1951 the Chief Engineer intimated to the Superintending Engineer his approval to the direct appointment of Mirza Afzal Beg as a temporary accounts clerk; and sanction was also accorded to the relaxation of age limit under rule 3.8 of the Civil Services Rules. It will thus be seen that the provisions of rule 5 (ii) of the Public Works Subordinate Service Rules as well as those of rule 3.8 of the Civil Services Rules were complied with. The learned Assistant Advocate‑General contended, firstly, that the Superintending Engineer and not the Chief Engineer was the appointing authority 'and, secondly, that the appointing authority contemplated by subsection (1) of Article 181 of the Constitution is the one which in fact made the appointment and not the one who had the legal power to make it. As regards the first contention, it is sufficiently answered by rule 5 (ii) of the Punjab Public Works Subordinate Service Rules. We do not regard as substantial the alternative argument raised in this connection that these rules do not apply to temporary substantive appointments. There is nothing in these rules to support this argument. On the other hand, rules 4 and 5 relate to " all appointments " in the service. Article 182 (1) of the Constitution provides:‑-- " Except as expressly provided by the Constitution or an Act of the appropriate legislature, appointments to the civil services of, and civil posts in the service of, Pakistan shall be made :‑ (b) in the case of services of a Province and posts in connection with the affairs of a Province, by the Governor of the Province, or such person as he may direct ". This obviously relates to all posts whether temporary or permanent and it makes it obligatory upon the Governor to make the appointments either himself or indicate some other person for that purpose. The question as to who is' the appointing authority cannot be left in doubt. As an other rules relating to the appointments to temporary posts have not been pointed out to us, it must be held that the rules under consideration are applicable‑there being nothing to the contrary therein. The second contention must also be rejected because as has been just pointed out, Article 182 does not contemplate any de facto appointing authority; it is either the Governor or such person as he may direct. Therefore, in the case of a Province, a valid dismissal under Article 181 can be made only either by the Governor or by a person named by him for the purpose. In this case, as has already been pointed out, it was the Chief Engineer who actually appointed the petitioner. Lastly, it was straneously urged that in fact the peti tioner was dismissed either by the Chief Engineer himself or by the Minister concerned. The facts relating to the dismissal are these: It appears that some time in August 1956 the petitioner approached the Minister for Communication and Works regarding his transfer to some other circle and confirmation. The Minister asked for a report from the Additional Chief Engineer who submitted it on the 5th Septem ber. After dealing in detail with the case the report concluded "He (the petitioner) cannot be kept even in the temporary service and the Superintending Engineer, Rehabilitation Circle, who appointed him will have to remove him." The Minister noted: "Seen. Returned. 9th September 1956." On the 19th of September the Superintending Engineer sent to the petitioner the letter, already referred to above, terminating the latter's service with effect from that date. A copy of this letter was sent to the Additional Chief Engineer with an endorsement, the last sentence of which runs: "I have, therefore, taken the action as indicated above and terminated his services with effect from to‑day, the afternoon of 19th September 1956, and solicit your approval for the same. On the letter the Additional Chief Engineer wrote:‑-- "He is fully competent to take action as considered suitable by him under the appointment conditions. Also draw his attention to the last letter written by us. (Better inform C. E. W. P. also)" It is clear that the Minister took no action whatever in the matter, one way or the other; and that the Additional Chief Engineer did not exercise the power of dismissal on the assumed ground that it was exercisable by the Superin tending Engineer who was the appointing authority. In his report dated the 5th of September 1956, the Additional Chief Engineer had also clearly expressed the view that the removal of the petitioner will have to be made by the Superintending Engineer who was the appointing authority. It was strenuously contended by the learned Assistant Advocate‑General that by his note the Additional Chief Engineer clearly expressed approval of the action taken by the Superintending Engineer and, therefore, it must be held, by implication, that it was the Additional Chief Engineer himself who removed the petitioner. In the first place, approval, although it may have been actually intended, was not expressed as would appear from the expression "as considered suitable by him (the Superintending Engineer) under the appointment conditions." Secondly, the consti tutional requirement laid down in subsection (1) of Article 181 for the benefit of public servants must be complied with in letter as well as spirit. Fundamental requirements of the Constitution cannot be got over either by straining logic or by resorting to possible implications and inferences. Unless the authority competent to dismiss or remove applies its own mind to the case and makes an order which is its own, the mere approval of an action taken by an unauthorised person cannot be treated as valid dismissal or removal within the meaning of Article 181 (1). The removal, even if it could be deemed to have been made by the Additional Chief Engineer, would still remain invalid on the ground that only the Chief Engineer, as the Head of the Department, had the authority to make it. For the above reasons, we hold that the removal of the petitioner from service was null and void and that he is still lawfully in service. We direct the respondents to treat him accordingly. The petitioner shall have his costs against the first respondent. Z.A.S./A.H. Petition accepted.