P L D 1959 Supreme Court (Pak (PLP)

SHAHABUDDIN, J.‑--These are appeals by special leave. All of them except Civil Appeal No. 43 of 1958 have been preferred by the Province of West Pakistan against the judgments of the Lahore Benches of the High Court of West Pakistan by which a writ in one case and directions in three other cases were issued to the Government of West Pakistan for reinstating the respondents to the higher posts in which they were officiating at the time they were reverted therefrom. Civil Appeal No. 43 of 1958 has been preferred by Ha ji Muhammad Khan, Senior Subordinate Judge, Bannu, against an order of a Lahore Bench of the said High Court dismissing in limine his application for a writ or direction to the Government of West Pakistan to post him as a District and Sessions Judge with effect from the date of his reversion from the said post to that of a Senior Subordinate Judge. These five cases are dealt with in a common judgment as the main question for consideration of which leave to appeal was granted is common to them viz., whether reversion to one's permanent post from a higher post whereat he was officiating for an indefinite period or until further orders while his juniors who were officiating similarly are continued in the higher posts amounts to a reduction in rank within the meaning of S. 240 of the Government of India Act, 1935 or its corresponding provision in the late Constitution, Article

181. In the orders granting leave in three of these cases some other points were also mentioned as points for consideration, but, in view of the conclusion we are arriving at on the main question, it is not necessary to deal with the other points which may be left for determination in more appropriate cases. Facts of these cases briefly stated are as follows. In Civil Appeal No. 17 of 1958, the respondent Bashir Ahmad Qureshi who was confirmed as an Overseer with effect from 1st August 1940, was appointed on 22nd June 1949, as an officiating S. D. O. He continued in that post till he was reverted under orders dated 8th April 1954. He filed a writ petition alleging that by virtue, of his length of officiating service he had been placed as No. 6 in the half year Gradation and Distribution List of the Officers in Buildings add Roads Branch of Public Works Department and as such he was senior to as many as 21 Overseers who were also officiating as Sub‑Divisional Officers, but he was reverted while those juniors of his were still continuing to officiate and that his reversion therefore amounted to reduction in rank for which no cause was assigned. The learned Judges allowed this petition in a very snort order. They, came to the conclusion that the constitutional safeguard contained in S. 240 of the Government of India Act, 1935 was attracted because the appointment was for an indefinite period being until further orders and not to officiate in a leave vacancy or other vacancy limited in time. It was also held that the implication that Bashir Ahmad Qureshi's reversion was a kind of punishment was clear from the fact that officers junior to him with no higher academic qualifications were still continuing to officiate as S. D. O's w hen he was reverted. In the next case Civil Appeal No. 41 of 1958 the respondent Ch. Muhammad Bashir a permanent Overseer in P. W. D. Irrigation Department who was appointed on 6th September 1947 as an officiating S. D. O. was reverted on the 25th June 1948. He was again appointed to officiate as S. D. O. from 11th May 1949 and continued in that post till 12th September 1952. In January 1952 he was charged with having made a "fudge payment for the work of removing silt from lands" during February 1947, when he was an Overseer, but after an enquiry the proceedings were dropped. He was however reverted to his permanent post of an Overseer by an order, dated 30th August 1952. On 10th July 1956 he filed an application for a writ alleging that his reversion amounted to a reduction in rank as he was working against a permanent vacancy for an indefinite period and that he was reverted though the enquiry resulted in his exoneration and 58 of his juniors were allowed to continue to officiate as S. D. O's. The position taken on behalf of Government was that Ch. Bashir Muhammad was reverted because he was not considered the right type of officer to be posted on important construction projects and that as he was not holding the post of S. D. O. substantively he could be reverted without being given an opportunity of showing cause against such reversion. It was also pointed out in the written statement that the petitioner did not appeal or make a representation against his reversion, but filed the petition about four years later and that on that ground this was not a fit case for the issue of a writ. The learned Judges directed the reinstatement of the respondent in a summary order of the same kind as in the last mentioned case. In coming to the conclusion that the constitutional safeguard applied to this case the learned Judges observed that the officiat ing appointment as an S. D. O. was not conditioned by any fixed period of time and it was not denied that officials junior to the petitioner before them were still officiating as S. D. O's. Facts in Civil Appeal No. 43 of 1958 are these. The appellant, a permanent Senior Subordinate Judge, was appointed on 27th August 1952 to officiate as Second Additional District and Sessions Judge, Peshawar, in the vacancy caused by the services of Mr. Daud Khan a District and Sessions Judge having been placed at the disposal of Government of Pakistan. On 20th June 1955 he was reverted to his substantive post of Senior Subordinate Judge and posted to Banrnu as a result of the reversion of Mr. Daud Klan to the Province, while two of the juniors of the appellant, who were then officiating, one as a District and Sessions Judge and the other as Senior Subordinate Judge, Peshawar, which post is of the same grade as a District and Sessions Judge, were continued in those higher posts. The case of the appellant was that his reversion in these circumstances amounted to a reduction in rank and therefore he should have been given an opportunity to show cause against such reversion. The High Court dismissed the petition in limine observing that it was not a fit case for a writ. In Civil Appeal No. 44 of 1958 the respondent Abdur Rashid who was confirmed as an Overseer in the P. W. D., Buildings and Roads Branch was promoted as officiating S. D. O. in 1949, but was reverted to his substantive rank in December 1953. On the very next day he was suspended and was charged before the Special Judge, Lahore with offences of bribery and corruption of which he was acquitted; and on 22nd September 1956, he was reinstated in his substantive rank of Overseer. His petition was for a writ for reinstatement as an Officiating S. D. O. on the ground that his reversion was a reduction in rank. He pointed out that when he was reverted there were as many as 21 of his juniors till officiating as S. D. O's. and that passing orders without mentioning any grounds and giving him an opportunity of being heard was in contravention of S. 240 of the Government of India Act. The case of the Government was that this officer was not qualified for appointment to the post of S. D. O., that his promotion to this rank was a stop‑gap arrangement necessitated by the creation of new temporary Sub‑Divisions, that promotion to the rank of S. D. O. could be made by selection and that before he could be appointed permanently the approval of the Public Service Com mission was necessary but he was not an officer who had been approved by the Commission for appointment as S. D. O. It was also pointed out in the written statement that he was not qualified for appointment as S. D. O. for which the necessary qualification was a degree in Engineering while the petitioner was only a Diploma holder from Rasool. In this case the learned Judges constituting the Bench which heard it wrote a longer order considering the decisions cited on both sides, but they came to the same conclusion as in the first two of the above‑mentioned cases. It is however necessary to refer to this judgment in some detail because as far as we can see this is perhaps the first considered judgment of the High Court on the question under discussion. After stating the facts the learned Judges observed as follows:‑ "The applicant was appointed for an indefinite period and but for the order in question, he would have continued to hold the post of an officiating Sub‑Divisional Officer up to date. As regards the ground on which the applicant was reverted the letter of the Additional Chief Engineer * * * simply recites that since the applicant was reverted on the recommenda tion of the Weeding‑out Committee, he would not be reinstated as an S. D. O. Although it is not known what considerations influenced the Weeding out Committee in making their recom mendation, yet it is obvious that their report amounted to the condemnation of the applicant and it is not denied that before the order of the reversion was made, he was not given an opportunity to show cause against it. In the circumstances, the order of reversion was clearly illegal because it amounted to reduction in rank within the purview of subsection (3) of S. 240 of the Government of India Act. We are conscious of the position that an officiating Govern ment servant has no legal right to hold a post when the permanent incumbent who holds a lien on it rejoins or the post is reduced or the period for which the junior officer was promoted has expired or the specific task assigned to him has ended, but reversion in none of these cases amounts to reduction in rank for it involves no penalty or condemnation so as to attract the aforementioned provisions of the Constitution. He has no right to be heard against the proposed reversion in the cases envisaged above, but in the instant case, the order amounts to a penalty for officers junior to the applicant were allowed to continue to officiate as S. D. O., and the post from which he has been reverted was not reduced. Consequently under the Constitution it was necessary that he should have been given an opportunity to show cause against the proposed action. He may have no right to hold the post substantively as was observed by the learned Judges in the Union of India v. Parshotam Lal Dhingra, but he has a firmer right guaranteed by the Constitution to be protected against any arbitrary and discriminatory action on the part of the Government". The learned Judges then quoted a portion of the judgment of the learned Chief Justice of Pakistan in Noor ul Hassan's case (P L D 1956 S C (Pak.)331) and with reference to the observation therein that a discharge from service does not amount to dismissal "where the right of the servant to stay on a post was itself made dependent as in the case of a person on probation on his being found fit for the duties of that post" went on to observe as follows:‑ "The facts of the instant case are, however, different. As mentioned above, the applicant was appointed to the post of S. D. O. for an indefinite period and there was no such, term that in case his work was considered to be unsatisfactory or he is found to be suffering from any shortcoming; he could be reverted without assigning any cause. A case of this nature would more appropriately fall within the category of an officer on probation". In the last case, Civil Appeal No. 70 of 1958, the respondent Muhammad Ali, a permanent Overseer in the P. W. D. of the Punjab Buildings and Roads Branch, was first appointed as officiating S. D. O. on the 14th April 1950, but was reverted in the normal course to the post of an Overseer on the 20th August 1950. Thereafter he was similarly promoted and reverted on a number of occasions, the last promotion being of date 6th October 1956, which was followed by an order of the 12th November 1956 reverting him to his substantive post. By his petition he challenged three orders of reversion, that is, the last order, and two previous orders of the 25th June 1953 and the 30th July 1956. His application for a writ was made on the same grounds as in the other cases i.e., his reversion amounted to a reduction in rank and he was not given an opportunity to show cause against such reversion. The position taken by the Government was that the post of S. D. O. was ordinarily meant for qualified engineers, that at the time of an emergency Overseers are promoted as officiating S. D. O's in stop‑gap arrangements and that reversion therefore was not reduction in rank requiring notice to show cause. In the judgment, after stating the facts and pointing out that if his place in the list of seniority had been correctly fixed he would not have come in the category of officers to be reverted, the learned Judges referred to their decision in the case of Abdul Rashid referred to above and for reasons given in the judgment in that case rejected the contention of the Assistant Advocate‑General that reversion from an officiating appointment was within the discretion of Government. They finally observed:‑ "We are satisfied that the reversion of the petitioner from a higher officiating appointment which was not conditioned by fixation of a particular period or a specific piece of work to be performed, was not occasioned by a leave vacancy and promo tion to which was indeterminate in point of time, would be equivalent to reduction in rank, and, therefore, the petitioner could avail himself of the statutory protection afforded by S. 240 (3) of the Government of India Act, 1935". In dealing with the merits, it is convenient to take the appeals filed by Government of West Pakistan first and that of the Senior Subordinate Judge last. From the observations in the judgments from which appeals filed by Government have been brought, the following propositions can be said to emerge:‑ (a) if an officer is appointed to officiate in a higher post for a fixed period or in a leave vacancy or for the performance of a specific task his right to continue to officiate ceases with the period fixed or the return of the permanent incumbent from leave or the completion of the specific work and consequently reversion at those stages is not reduction in rank; (b) similarly, an officiating appointment subject to the condition that in case the work of the officer appointed to officiate is considered unsatisfactory or he is found suffering from some shortcoming he could be reverted without assigning any cause, as such a case falls within the category of officers on probation; (c) but if the officiating appointment is until further orders or without any limitation reversion is reduction in rank if it is a penalty; and (d) that reversion in such cases is a penalty need not be specifically stated in the order. It is sufficient if it can be implied and such an implication arises from reversion on the recommendation of a Weeding‑out Committee or while juniors are allowed to continue to officiate in similar higher posts. We find it difficult to understand the principle on which differentiation is made in the cases of reversion indicated above, when under the rules in an officiating appointment the appointee continues to have a lien on his permanent post and not on the higher post in which he officiates. If an officiating appointment subject to the condition that in case work is considered un satisfactory or the officer concerned is found to be suffering from some shortcoming is on the same footing as an appointment on probation and therefore reversion from it is not reduction in rank, then it ought to follow that reversion from an officiating appointment in all cases is similarly not a reduction in rank, for an officiating appointment, in the nature of things, is tentative, in the sense of putting the incumbent to proof of his capacity and competency in respect of higher responsibilities than those attaching to his permanent post or grade. Every officiating appointment is really subject to the condition of the officer and his work being found satisfactory. As contended by the learned Advocate‑General in these cases, the officiating appointments were obviously made in order to meet emergencies for which qualified personal was not available and therefore use had to be made of Each of the Overseers who were selected on the expectation that they would be able to cope with the work. If in these circumstances they are found not suitable the authorities should be able to revert them. They, therefore, promoted them only to officiate. That being so, they could not specify any period. In one case they said that the appointment was "until further orders". In the other three cases they merely stated that the appointment was an officiating one. Such an order is not fore effective than an order to officiate for a fixed period, for, when the latter order fixes the tenure of the officiat ing appointment the other order implies liability to revert even on the next day after the appointment. In Hikmat Hussain's case (P L D 1959 S C (Pak.) 107) this Curt has held that in a case of an officiating appointment until further orders it is open to Government to revert the office whenever it finds that his continuance in office is not in the public interest and that such an appointment does not give the dicer any permanent right. The words "until further orders" ere mentioned in that judgment in stating the terms of the order as the order in that case contained that expression. There is nothing in that judgment to show that if these words were not used the order would have given Mr. Hikmat Hussain a better right. Even if that judgment is regarded as an authority only it cases where the order uses those words, it will have full application to the case of Bashir Ahmad Qureshi which has give rise to appeal No. 17 of 1958. As regards the other appeals ale the principle of that decision applies. If, as rightly stated y the learned Judges, an officer appointed to officiate has no right to the higher post, then the only con sideration that on weigh in dealing with him is public interest as to which the superior officers of the relevant department are the sole judges. That being so, even if notice is given to show cause what can tat officer establish? The decision has to be based on the selective satisfaction of his superior officer. An officiating S. DD. may be quite hard working but may not be as hard working for the project on which he is employed as time at the disposal of authorities requires. It is, therefore, a matter for the appointing authority to decide. If that authority finds other office though junior more suitable, then in the public interest he must have power to revert the one whom he considers unsuitable. No question of an enquiry arises. However, the constitutional safeguard is attracted only to cases of dismiss, or removal from service and reduction in rank. Reversion does of come under dismissal or removal as the respondents are still in service. As for "reduction in rank" it has been observed by the learned Chief Justice of Pakistan in Moazzam Hussain Khan's case (P L D 1959 S C (Pak.) 13) that those words "are a compendious way of describing penalty (iii) of Rule 49 of the Civil Services (Classification, Control and Appeal) Rules just as the words `dismissed or removed from service' " have reference to penalties under (vi) and (vii) of those Rules. It was also explained in that judgment that the rank from which an officer can be said to have been reduced is the one to which he is entitled in the cadre of the service to which he belongs. In that case there was no doubt an additional factor that the officer concerned had been deputed by the Provincial Government far service under the Central Government and there was con sequently the question of his continuance in the service of the Central Government being dependent on the consent of the Provincial Government and its right to recall him; but apart from that consideration the question as to what "reduction in rank" means was also generally considered. The following observation of the learned Chief Justice is instructive:‑ "It would be impossible to contend that when an officer, belonging to an All Pakistan Service, is appointed to a post at the Centre which is not reserved for the members of that service or is not borne on the cadre of posts for that service, he cannot be reverted to his original post before the expiry of any period which may be so indicated. The reversion may be due to the exigencies of the public service or in the public interest and no individual legal right is thereby infringed. The reversion can neither found estoppel nor can amount to a breach of contract because such a tenure is necessarily subject to the condition that the Government servant will be kept on the particular post for the full period indicated only if the public interests are not thereby adversely affected. There can be no question of reduction in rank in such cases because the special tenure post not being on the cadre of posts for that service his employment on such post was essentially in the nature of a concession or favour which could be with drawn by the Government earlier if such course became necessary in the public interest". In the cases out of which the appeals filed by the Government have arisen the Rules which contain the conditions of service both for the Buildings and Roads Branch and the Irrigation Branch clearly show that the service in which the respondents held permanent posts was different from that to which the posts in which they were officiating are ordinarily open. Posts of S. D. O's. are in the cadre of posts reserved for members of the Punjab Service of Engineers, Class II (as it was then designated). The appointment of Overseers to those higher posts on a permanent basis was to be by selection dependent on the decision of the services Commission based on the opinion expressed by the Chief Engineer about their work. Sardar Muhammad Iqbal who appeared for the respondents in all these cases relied in this connection on paragraph 1.12 (a) P. W. D. Manual and Orders which refers to four classes of services of Engineers in Building and Reads Branch, one of which is viz. "Overseers holding charge of Sub‑Divisions in Buildings and Roads Branch"; and his argument was that that was a cadre by itself and since three of the respondents in these cases were working in that cadre their being sent down would amount to reduction in rank. But the following portion of the paragraph makes it clear that although such Overseers might be thought to form a special class of officers within the depart ment they cannot be regarded as constituting a service with substantive rights in respect of a specified cadre of posts:‑‑ " As regards Overseers put in charge of Sub‑Divisions, they shall be appointed as such, only in emergent cases on purely temporary basis when no Assistant or temporary Engineer is available. They shall be selected from amongst the senior Overseers with good record and high academic qualifications and placed in the scale of * * * * as for Punjab Service of Engineers, Class II, with the consideration that if and when any of them is selected for promotion to Punjab Service of Engineers, Class II, there should be no difficulty in fixation of their pay in the latter service" Further, reversion to the substantive post cannot in terms mean? the same as reduction in rank. If reduction in rank was considered to cover reversion from a higher to a lower post rule 49 of the Civil Services (Classification, Control and Appeal) Rules which corresponds to Rule 14 of the Civil Service Rules (Punjab) which apply to the respondents in this case, would have mentioned such reversion as one of the penalties When a person is reduced from a higher to a lower post the authority ordering the redac tion may under Rule 4 (ii)‑ of Civil Sere‑ices Rules Punjab allow the reduced officer not the maximum pay of the lower grade post but a pay lower than the maximum at when a reversion takes place the reverted officer draws the pay of his substantive rank his officiating service in the higher post having been in the mealtime counted towards his increments in the scale of his substantive post. It is not suggested that any of the officers concerned in these cases was not given his proper place in his own service i.e., Overseer's upon reversion. In the case of Muhammad Ali (C. A. No. 70 of 1958) Sardar Muhammad Iqbal advanced an argument based on the terms of the order appointing Muhammad Ali to officiate as S. D. O. which ace as follows:‑ " Mr. Muhammad Ali Overseer on deputation to the Thal Development Authority may be posted as an Officiating Sub -Divisional Officer. He will however have to revert when any of his seniors acting at present as Sub‑Divisional Officer reverts to sectional charge". It was contended that this order impliedly assured him that he would not be reverted as long as his juniors were continued. We are unable to accept this interpretation. He was obviously not in the regular service but was serving under Thal Development Authority on deputation and the order only states that when his seniors are reverted he also would be liable to revert. If the authorities had found this respondent's work more satisfactory than that of his seniors they could have continued him in preference to them in spite of the condition mentioned in the order. The clause in it relied on by the learned Advocate refers only to the liability to revert. It is therefore clear that in ordering reversion from an officiat ing position the chief consideration is the public interest of which as explained above, none but the superiors of the officiating servant could be the judges. This important aspect of the matter was overlooked in these cases of Overseers, but it is significant that in the remaining case viz, the appeal of Haji Muhammad Khan, Senior Subordinate Judge, where the authority to judge whether in the public interest he should be reverted or not was the High Court itself, his application for a writ against his reversion from the post of a District Judge to his permanent post of Senior Subordinate Judge was dismissed in limine with the remark that that was not a fit case for the issue of a writ. Sardar Muhammad Iqbal contended for the appellant in this case that in reverting officiating District Judges to their permanent posts their seniority should have been kept in view. This argument was apparently based on the view taken by the High Court in the other cases discussed above; but sufficient has been said already to show that that view is not correct, and that the only consideration that should weigh in the matter of reversion is public interest. There is therefore no force in this appeal. We, therefore, allow all the appeals except Civil Appeal No. 43 of 1958 which is dismissed. There shall be no order as to costs. A. H. Order accordingly.