P L D 1966 (W (PLP)

MUHAMMAD GUL, J.‑This writ petition under Article 170 of the 1956 Constitution read with Article 2 (4) of the Laws (Continuance in Force) Order, 1958, calls in question Notifica tion No. 7/2‑Admn./56 so I, dated the 30th September 1959, issued by the Government of West Pakistan, in the Department of Irrigation, Communications and Works, (hereinafter called the impugned notification) modifying the Gazette Notification No. S‑39‑C/1‑E(1), dated the 6th May 1955, issued by the Government of the former Province of Sind. (Annex 25) by which the petitioner was confirmed in his appointment as the Superintending Engineer in the former Province of Sind, as from the 11th April 1955. The impugned notification purports to "deconfirm" him in his appointment as the Superintending Engineer.

2. It is necessary to state briefly the facts leading to this writ petition. These facts are not in dispute. In 1946, on the recommendation of the Bombay‑Sind Public Service Commission, the petitioner was appointed by Governor of the former Province of Sind as the Hydrodynamic Research Officer in the senior scale of the Sind Service of Engineers (S. S. E.) Class

1. This was permanent specialist post outside the regular cadre of S. S. E. Class I. The petitioner joined the post on 7‑9‑1946 and on the completion of two years' probationary period was confirmed in the post as from 7‑9‑1948. He was appointed to act as Executive Engineer, Research Division, w. e. f. 12‑1‑1948, while he was still a probationer undergoing his training. This was a post in the regular cadre of S. S. E. Class I. Later, with the concurrence of the Public Service Commission, he was appointed a Deputy Secretary to the Provincial Government, which was comparatively a high appointment for a junior officer like the petitioner. He also worked as Secretary, Indus Water Commission. On 7‑11‑1951, vide Notification No. S‑39‑C/1‑E(1), the petitioner was appointed to officiate as Superintending Engineer and placed in charge of Mechanical and Research Circle in addition to his duties as Deputy Secretary to the Provincial Government. Later, he was transferred as Superintend ing Engineer, on Special Duty, against a newly‑created post sanctioned vide the Provincial Government's Resolution Public Works Department No. 8838‑E(1), dated the 21st August 1952. He held this charge in addition to his being Superintending Engineer (Mechanical and Research Circle). In April 1952, the petitioner was nominated by the Provincial' Government to serve as a member of Engineers' Delegation for Indus Basin Water to participate in the discussions held under the aegis of the Interna tional Bank of Reconstruction and Development and accompanied the Pakistan Delegation to Washington. On his return to Pakistan in August 1952, he was again posted as Superintending Engineer, on Special Duty, Mechanical and Research Circle. In December 1952, he was nominated by the Government of Pakistan to serve on the Pakistan Delegation which along with its Indian counterpart toured Pakistan and India for the inspection works connected with Indus Basin Water dispute. On a request by the Pakistan Government, the petitioner was again nominated by the Provincial Government to serve on Pakistan Delegation on Indus Basin Waters dispute and accompanied the delegation again for discussion in Washington in the years 1953 and 1954.

3. While the petitioner was .in Washington for the second time as member of Pakistan Engineers' Delegation in September 1953, the Government of Sind by a cable promoted him to be the Chief Engineer, on Special Duty. This was, apparently done because engineers serving on the delegations both from Pakistan and India (except representing the former N.‑W.F.P.) were all Chief Engineers. The intention was to invest him with the status and the rank commensurate with his responsibility and to give him "effective vice" in the discussions on Indus Basin Waters. There was, however, no increase in his salary and he continued to draw the salary of the Superintending Engineer, on Special Duty. On his return to Pakistan early in May 1954, the post of Superintending Engineer on Special Duty, previously held by the petitioner, was also upgraded to that of the Chief Engineer, vide Provincial Government's Resolution No. 9109‑E(1), dated 7‑8‑1954, and he was appointed as the Chief Engineer, on Special Duty, which post he held, till he was appointed as the Chief, Water and Power Section, Planning Commission, Government of Pakistan, Karachi, which post he is presently holding on deputation.

4. Thus, it will be seen that the petitioner since the incep tion of his service as the Hydrodynamic Research Officer, except for the short period during which he held the post of Executive Engineer, Mechanical and Research Circle, throughout held ex -cadre post much higher in rank and status than would ordinarily be offered to an officer of his length of service. This was perhaps due to his high professional qualifications and ability. . He is B.E. (Bombay) Ph. D. (Eng) (London) and D. I. C. in 1948, while the petitioner held the post of Executive Engineer, Mechanical and Research Circle, the Sind Government on his request forwarded his case to the Public Service Commission for approval of his appointment as Executive Engineer in the regular cadre of S. S. E. (Class I). Incidentally it would have also brought the specialist post to which he was initially appointed in the general cadre of S. S. E. (Class I). The Commission, however, did not agree to the proposal unless the petitioner was first appointed and confirmed as Assistant Engineer, else, it would involve supersession of others senior to him in the regular cadre of S. S. E. senior scale. Ultimately, the Sind Government vide Resolution No. 5322‑E (2), dated the 4th March 1955, included the post of Hydrodynamic Research Officer in the regular cadre of S. S. E. (Class I), raising the number of superior posts in that service from 53 to

54. The result, therefore, was that the petitioner became a regular member of S. S. E. (Class I), Shortly thereafter, the Provincial Government vide Notification No. S‑39‑C/1‑E(l), dated the 6th May 1955, confirmed the petitioner as "permanent Superintending Engineer" w. e. f. 11‑4‑1955, along with certain other officers. The Public Service Commission was, however, not consulted then. It is this notification of the Government of former Province of Sind, which the impugned notification purports to modify and which has the effect of depriving the petitioner of the status of a "confirmed permanent Superintending Engineer" in S. S. E. (Class 1) relegating him to a much lower position in the Integrated Seniority List of Chief/Additional Chief/Deputy Chief/Superin tending Engineers in the Irrigation Department.

5. Of the two respondents, only the Secretary, Irrigation, Communications and Works Department of the Provincial Government has filed written statement to canvass validity of the impugned notification "deconfirming" the petitioner in his appointment as permanent Superintending Engineer. It was averred that the former Sind Government's notification of the 6th May 1955 by which the petitioner was confirmed as permanent Superintending Engineer was issued without consulting the Public Service: Commission and, therefore, was "illegal". It was alleged that on the discovery of this omission, the former Sind Government reopened the case, but before a final decision was taken, the Province of West Pakistan was established replacing, inter alia, the former Province of Sind. Therefore, a reference was made to the West Pakistan Public Service Commis sion and on its advice the petitioner was "deconfirmed". Certain extracts from the advice of the Commission are also reproduced in the written statement to support the impugned notification.

6. Mr. A. K. Brohi, who appeared for the petitioner contended that the petitioner's confirmation as the Superintending Engineer in the former Province of Sind did not require under section 266 (3) of the Government of India Act, 1935 (hereinafter called the Constitution Act) consultation with the Public Service Commission, at any rate, the requirement of the section with regard to consultation with the Public Service Commission is merely directory and, therefore, any omission or non‑observance of its provision would not vitiate the appointment. It was further urged that the fact that the petitioner' was initially appointed as the Hydrodynamic Research Officer and later as Deputy Secretary and the Superintending Engineer, on Special Duty, and finally as the Chief Engineer, on Special Duty, in consultation with the Public Service Commission was a substantial compliance with the requirements of section 266 (3). Finally it wag stressed by learned counsel that the petitioner's confirmation as the Superintending Engineer having been made by tie competent authority‑the former Government of Sind‑it was not open to the successor Government to order petitioner's "deconfirmation" more so in view of the proviso to section 8 (3) of the Establishment of West Pakistan Act, 1955' and Article 232 of the 1956 Constitution, which make the petitioner's status as confirmed Superintending Engineer inviolable.

7. The learned Assistant, Advocate‑General, on the other hand, contended that the requirement of section 266 (3) of the Con stitution Act is expressly mandatory which admits of no exception, with the result that the petitioner's confirmation as the Superin tending Engineer having been made without consultation with the Public Service Commission was "illegal" 'and, therefore, void ab initio. It was also contended that the petitioner had been appointed to the ex‑cadre posts of Deputy Secretary, Superintending Engineer, on Special Duty and, therefore, concurrence of the Public Service Commission for these appointments did not avail, the petitioner for his permanent appointment as the Supeintending Engineer in the regular cadre of S. S. E. (Class 1).

8. The main argument in the case was confined to the question whether section 266 (3) of the Constitution Act is madatory in the sense, that a non‑compliance with its requirement would make the appointment, otherwise made by a competent authority, void? Section 266 (3) of the Constitution Act for the material purpose reads: "266 . . . . . "(3) . . . . the Governor . . . as respects services and posts in connection with the affairs of a Province, may make regulations specifying the matters in which either generally or in any particular class of cases or in any particular circumstances, it shall not be necessary for a public service commission to be consulted, but subject to regulations so made and to the provision of the next succeeding subsection‑the Provincial Commission shall be consulted‑ (a) . . . . . . . . . . (b) on the principles to be followed in making appointments to civil services and posts and .in making promotions and transfers from one service to another and on the suitability of candidates for such appointments, promotions or transfers; (c) . . . . . . . . . . (d) . . . . . . . . . . (e) . . . . . . . . . . and it shall be the duty of Public Service Commission to advise on any matter so referred to them and on any other matter which . . . . . the Governor may refer to them." Learned Assistant Advocate‑General laid particular emphasis upon the words "the Provincial Commission shall be consulted" and urged that these words import mandatory intention, and any appointment made in violation of the above provision will be void ab initio. Therefore, the petitioner's appointment as permanent Superintending Engineer having been made by the former Sind Government without consulting the Provincial Public Service Commission was illegal and the impugned notification did no more than cure an illegality. We have no doubt that such an extreme proposition is untenable both in principle and on judicial authority. The provisions in the Constitution Act and the successor Constitutions requiring consultation with Public Service Commission have always been regarded as directory and not mandatory so that any appointment made in violation of such provisions would be at the most irregular and not void. While the Constitution Act was being debated in the British Parliament, Sir Samuel Hoare, the then Secretary of State for. India, while supporting the recommendations of the Joint Select Committee on the institutions of Public Service Commissions said: "Experience goes to show that they (the Commissioners) are likely to have more influence if they are advisory than if they mandatory powers (sic). The danger is that if you give them mandatory powers you then set up two governments in a Province and two Governments at the Centre, and there is everything to be said against a procedure of that kind," This makes it perfectly clear that the framers of the Constitution Act did not intend to place the functions of the Public Service Commissions at a higher footing than advisory, and therefore, it would be wholly wrong to suggest that failure to consult a Public Service Commission would vitiate the appointment. Even the general principles of interpretation point to the same conclusion. In Maxwell on Interpretation of Statutes (1962) Edition at page 369, it is observed as follows:‑ " . . . . . where the prescriptions of a statute relate to the performance of a public duty, and where the invalidation of acts done in neglect of them would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty, yet not promote the essential aims of the Legislature, such prescriptions seem to be generally understood as mere instructions for the guidance and government of those on whom the duty is imposed, or, in other words, as directory only . . . . ." These observations are very apt to the instant case. It cannot be disputed that the former Government. of Sind under a public duty was to refer the petitioner's case to the Public Service Commission for confirmation. The petitioner was not in a position to compel the Government to perform its public duty and if it were to be held that failure or neglect of the Provincial Government to consult the Public Service Commission would vitiate the petitioner's appointment as the Superintending Engineer, strange consequences would follow. It would not only penalize the petitioner for the omission or neglect of the Provincial Government over which he had no control, it would also nullify all acts performed by him in the discharge of his official functions and thereby affect the rights of third persons who had to deal with him in his official capacity. Law does not contemplate such consequences.

9. The matter is not bare of judicial authority either. In a case under the corresponding provisions of 1956 Constitution, in Province of East Pakistan v. K. A. Mansur (P L D 1963 Dacca 211), it was held that Public Service Commission is a consultative body and its recommendations regarding recruitment to civil services are not binding though the latter has to accept them except in exceptional cases. The same view was taken by the Indian Supreme Court in State of U. P. v. Manbodhan Lal (P L D 1958 S C (Ind.) 170). It was observed by the learned Judges that the word "shall" used in the relevant constitutional provision is not mandatory and does not necessarily mean that the requirement of the Constitution punctiliously to be followed. The same principle is deducible from Biswanath Khemka v. The Emperor (A I R 1945 F C 67) wherein one of the questions consi dered by the learned Judges was whether section 256 of the Constitution Act is mandatory or directory? Section 256 runs: "No recommendation shall be made for the grant of magisterial powers or of enhanced magisterial powers to, or the withdrawal of any magisterial powers from, any person save after consultation with the district magistrate of the district in which he is working, or with the Chief Presidency Magistrate, as the case may be." In the precedent case, the competency of Additional Presidency, Magistrate, trying the cases under appeal was questioned on the plea, that his appointment had been made without consulting the Chief Presidency Magistrate and, therefore, sentences passed on the appellants were ineffective. In repelling the above conten tion, Zafarullah Khan, J. (as he then was) observed as follows:‑ "The direction as to consultation laid down in section 256 is directory and not mandatory and non‑compliance with it would not render an appointment otherwise regularly and validly made ineffective or inoperative.

10. A review of above authorities and the historical background of the provision in the Constitution Act relating to consultation with the Public Service Commissions leave no manner of doubt, that the provision is directory in its requirement and failure of a Government to consult Public Service Commission or an appointment made in disregard of its advice would not make the ‑appointment illegal. Thus the rigid stand taken on behalf the respondents is wholly fallacious. The former Sind Government's failure to consult the Public Service Commission before issuing the notification of 6th May 1955, was at the most a mere irregularity: it is not controverted, that the former Sind Government could even order the petitioner's confirmation despite, the Commission's advice to the contrary, in the event of a reference to the Commission. Thus the whole basis upon which the impugned notification, affecting the petitioner was issued was misconceived.

11. There is yet another aspect of the case which cannot possibly be overlooked. As pointed out in the beginning, the petitioner though initially appointed to a specialist ex‑cadre post of Hydrodynamic Research Officer, yet the former Government of Sind tried to absorb him in the regular cadre of S.S.E. (Class 1) to which Public Service Commission objected unless certain conditions were satisfied. Notwithstanding that objection, the petitioner was appointed to higher posts of Deputy Secretary and Superintending Engineer, which should have ordinarily gone to senior officers in the regular cadre. It is true that while the peti tioner held the posts of Superintending Engineer and later promoted as Chief Engineer, the expression, "on Special Duty" remained a part of his designation to indicate that his appointment fell outside the general cadre of S. S. E. (Class I), but the fact remains that the former Sind Government with a view to recognize the merit in him, wanted in 1948 to appoint him‑ and absorb his post in the general cadre of S. S. E. (Class I). However, the matter was then pressed further, because of the objection raised by the Public Service Commission. However, the petitioner was appointed to still higher posts entailing greater responsibilities and at the behest of the Central Government was nominated to serve on Pakistan Delegation to Indus Basin. Waters. It is no wonder, therefore that in 1955, the former Government of Sind, not only included the post of Hydrodynamic Research Officer in the general cadre of S. S. E. (Class I), but also thought it fit, to confirm him as the Superintending Engineer, a post he was appointed for the first time 'in November 1951 and which he held continuously till he was appointed Chief Engineer on Special Duty in 1953. It is not suggested that the notification of the 6th May 1955 was issued inadvertantly or as a result of a fortuitous omission to consult the Public Service Commission. Rather the indications definitely are that the former Sind Government confirmed the petitioner as a result of calculated decision and to give him the benefit of ex‑cadre service in the meantime, earlier refusal of the Public Service Commission in 1948, notwithstanding. It cannot be contended that the former Sind Government was not com petent to take such decision. Vide section 241 (1) of the Constitution Act, a Governor's power to make appointments to a civil service or a civil post in a Province are subject only to the express provisions of the Act, in other respects it is unqualified. In the above circumstances, as rightly urged by the petitioner's learned counsel, the principle laid down by their Lordships of the Privy Council in R. T. Rangachri v. Secretary of State (A I R 1937 P C 27) will be attracted to the instant case. In that case, a Sub‑Inspector of Police, who was charged with mis conduct and against whom charges were held proved was sent on premature retirement on invalid pension by the Superintendent Police, who was competent authority to take decision in the matter. After the order had taken effect, the succeeding Superintendent Police reopened the case on fresh consideration of the matter and dismissed the delinquent Sub‑Inspector. In the litigation that followed, the case was taken in appeal to the Privy Council and their Lordships while reinstating the original order of retirement on invalid pension observed as follows: "In a ease in which after Government Officials, duly competent and duly authorized in that behalf, have arrived honestly at one decision, their successors in office, after the decision has been acted upon and is in effective operation cannot purport to enter upon a reconsideration of the matter and to arrive at another and totally different decision." The facts of the precedent case may be different, but the principle laid therein, in our opinion, applies to this case.

12. Upon the view of the matter, therefore, the contention raised on behalf of the petitioner that he was validly appointed as confirmed Superintending Engineer by the competent authority is not open to any serious doubt: A fortiori, the rank and status of a confirmed Superintending Engineer in S. S. E. (Class I) became an essential element in the "terms and conditions" of his service which on the coming into force of the Establishment of West Pakistan Act, 1955, was sealed, as it were, under proviso to section 8 (3) which read: " "8 (3) All persons in the service of the Crown, serving in connection with the affairs of the specified territories . . . . . (Sind was among such territories) shall, as from the appointed day, be deemed to be persons serving the Crown in connection with the affairs of the Province of 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) . . . . . . . . . . ." After the repeal of the 1955 Act the above guarantee was preserved by Article 232 of the 1956 Constitution. In view of the above Constitutional guarantees, it was not permissible to the successor Government to reopen the matter for a fresh decision. We should, however, not be understood as laying down that the Government of West Pakistan, by virtue of the above provisions was forbidden to rectify administrative errors or illegalities committed in the administration of services in any of the integrating units prior to the establishment of the Province of West Pakistan; else it would amount to perpetuating error whether accidental or otherwise in relation to posts held "at pleasure" and holding the Government powerless to rectify the same. It was alleged in the written statement that after the notification of the 6th May 1955 was issued, the former Sind Government itself reopened the petitioner's case with a view to deconfirming him as permanent Superintending Engineer, because his confirmation offended against a formal Resolution of that Government. But there is no credible material‑not even an affidavit to support that allegation. Therefore, we can legitimately presume that the former Sind Government ordered confirmation of the petitioner as the Superintending Engineer after taking into consideration the ambient circumstances including his professional qualifications and attainments and remained satisfied with the decision till the Province of West Pakistan was established.

13. Mr Brohi also urged that the petitioner's "deconfirma tion" by means of the impugned notification operates as "reduc tion in rank" within the meaning of Article 181 of the 1956 Constitution and since no opportunity was afforded to the petitioner to show cause against his proposed "deconfirmation" the impugned notification was invalid. We are not impressed with this argument. It is not the petitioner's case that he has been "deconfirmed" by way of penalty for any misconduct or misbehaviour (using the word `behaviour' in a very broad sense so as to include inefficiency or inaptitude). To all appearances, the impugned notification has been issued purporting to rectify what might be described as administrative error or indiscretion committed by the former Sind Government. Such orders are often made in the normal administration of recognized. civil services which have large cadres and are governed by vast variety of Rules and Regulations which are frequently amended as the exigencies of situation might require. Any order made in such circumstances which tends to affect adversely any civil servant will not amount to a reduction in rank, even if it might entail a loss of pay or status as in this case. Pakistan v. M. H.I Khan (P L D 1959 S C (Pak.) 13) and Pakistan v. Hikmat Hussain (P L D 1959 S C (Pak.) 107) are authorities in point. Therefore, we do not find substance in the last submission made on behalf of the petitioner.

14. The upshot of the above discussion is that the petitioner having been competently confirmed as permanent Superintend ing Engineer by the former Sind Government vide its notification of the 6th May 1955, cannot now .be deconfirmed and to that extent the impugned notification is invalid. Accordingly we accept the writ petition and declare the impugned notification of no legal effect in so far as it purports to deprive the petitioner of the status of permanent Superintending Engineer.

15. The relief clause of the writ petition also includes a prayer for a direction to the respondents to treat the petitioner as the Chief Engineer in the integrated cadre. No such direction can possibly issue in the circumstances of the case. The petitioner, as pointed out already, was appointed Chief Engineer, on Special Duty, for a special purpose, namely, to invest him with an effective voice in the international discussions on Indus Basin Waters. The post created was an ex‑cadre post, which the Government can abolish at any time and with the abolition of the post, the appointment of the incumbent will automatically terminate. Furthermore, the impugned notification does not directly infringe upon or otherwise affect the petitioner's appointment as Chief Engineer, on Special Duty. He is at present on deputation with the Central Government and employed in the Planning Commission as the Chief, Water and Power Section probably in the rank of Chief Engineer. So long he holds his present post, there is no immediate threat to his reversion to a lower post under the Provincial Government. It seems that the petitioner apprehends that in the event of his reversion to the Province, he is likely to be appointed as Superintending Engineer. In these circumstances, no writ or a direction in the nature of mandamus can issue to avert a bare future possibility of his being appointed to a lower post than Chief Engineer, on Special Duty, on his reversion to the Province. At present the petitioner's apprehensions seem to be entirely speculative or at best exaggerated. Therefore, this part of the relief cannot be granted to the petitioner.

16. Since the petitioner succeeds partially, we make no order as to costs. K. B. A. Petition partly accepted.