P L D 1972 Supreme Court 326 (PLP)

The appellant was given no posting as an inquiry was being held against him into charges of espionage by the Director of Intelligence Bureau and Director of I. S. I. However, during the inquiry he was, on 27-11-1969, asked to take over the charge of the post of an Assistant Director in the Directorate of Immigra tion and Passports with immediate effect. Being aggrieved with the order, the appellant on the 14th March 1970, filed Writ Petition No. 471/S of 1970 in the erstwhile High Court of West Pakistan, Lahore Seat, for quashing the aforesaid order directing him to take over as Assistant Director on the contention that he held the post of a Deputy Director in substantive capacity and unless a show-cause notice was given to him as provided in Article 177 of the late Constitution of 1962, he was not liable to be reduced in rank. It was maintained that the appointment of the appellant as Deputy Director was not made `officiating' and that an appointment for an indefinite period even if it be in a temporary capacity attracts the incidence of a substantive appointment. Reliance was placed on Abdul Majid Sheikh v. Mushaffe Ahmed (P L D 1965 S C 208). It was laid down in that case by Cornelius, C. J.

"An employee holding an appointment indefinite in duration, although not in a substantive capacity, but expressly described as temporary, is in no worse case, as was held in the case of Noor-ul-Hassan (P L D 1956 S C (Pak.) 331). It is in the sense of these propositions of law that the appellant's appointment "until further orders" to his last post must be understood. There has been a violation of a constitutional guarantee available to the appellant, and we find him to be clearly entitled to the relief he claimed" In reply the Government took up the position that the appel lant was appointed as Deputy Director in an officiating capacity and could be reverted to his substantive post without show-cause notice. Reliance was placed on the Province of West Pakistan v. Bashir Ahmad Qureshi (P L D 1959 S C (Pak.) 93), Pakistan v. Qazi Syed Hikmat Hussain (P L D 1959 S C (Pak.) 107), Pakistan v. Mehraj-ud-Din (P L D 1959 S C (Pak.) 147), Province of East Pakistan v. Mohammad Sajjad AU (P L D 1962 S C 71), Dr. Mohammad Amin Durrani v. Government of West Pakistan and another (P L D 1966 S C 99), Collector of Central Excise & Land Customs v. A. K. M. Waliullah Chowdhury (P L D 1966 S C 788) and Atta Mohammad v. Government of West Pakistan (1970 S C M R 91). The learned Judges in the High Court examined the departmental file and concluded that the omission of the word "officiating" in the Notification dated 22nd May 1968, was immaterial as the appointment was made "till further orders" which clearly indicated that the appointment was not substantive in character. The learned Judges also referred to Paragraph 174 of the notes, reproduced above, and pointed out that the Home Minister had accorded approval to an officiating appointment which order held the field as no modification was made in that order by the Home Minister or the Home Secretary before the Notification of the 22nd May 1968, was issued. . On this pre mises the learned Judges held that the appellant was not reduced in rank within the purview of Article .77(1)(b) of the late 1962. Constitution when he was asked to take over charge of the post of Assistant Director, Immigration and Passports Directorate. The Writ Petition was, on these conclusions, dismissed without making any order as to costs. Leave to appeal was granted to consider that the appoint ment of the appellant "until further orders" rather indicated that it was to continue for an indefinite period and that he was reduced to the lower post of an Assistant Director by way of penalty as stated in the written statement of the respondent -Government filed in the High Court in which case it was mandatory for the Government to give to the appellant a show cause notice. We have heard Mr. Muzaffar Hassan, learned counsel for the appellant, and examined the departmental file. We concur with the conclusion reached by the learned Judges in the High Court that the appointment of the appellant was in a pro forma officiating capacity notwithstanding the omission of the word 'officiating' in the Notification dated the 22nd May 1968. As seen the Section Officer had, while drafting the Notification, substituted the word 'officiating' by the words : "till further orders". He also changed the words : "in absentia" to "pro forma". These changes were not calculated to enlarge the tenure of the appellant from an officiating capacity to a substantive appointment. Indeed, in the face of the order of the Home Minister, neither he nor the Deputy Secretary who issued the Notification had the authority to do so. There is also no force in the plea that the appellant was reduced to the rank of an Assistant Director by way of penalty. The documents included in the paper book by the appellant show that when he was asked to take over charge of the post of Assistant Director in the Immigration and Passports Directorate, Rawalpindi, an Inquiry was pending against him. A formal charge-sheet was given to him on 20th April 1970, and Mr. Farid, C. S. P., was appointed Inquiry Officer under Rule 8 of the Government Servants Efficiency and Discipline Rules to conduct the proceedings against the appellant. On the 4th August 1971, the appellant was given a show-cause notice as to why a major penalty should not be imposed upon him. The appellant there upon filed another writ petition in the High Court and in the course of it, the Government decided to drop proceedings against him. On this concession the petition was allowed by a Division Bench on the 18th April 1972, and both the charge-sheet and the notice given to the appellant were quashed. These events bring out clearly that the impugned order directing the appellant to take over charge of the post of Assistant Director was not made by way of penalty for misconduct. In law, it was open to the Government to revert the appellant from the officiating post of Deputy Director to his substantive post of Assistant Director without giving him a show-cause notice. Government has the legal authority to terminate an officiating appointment at any time and it may do so for any reason relatable to exigencies of service. No show-cause notice is necessary in such a case. But if it is intended to revert an officer to an inferior post by way of penalty, a show-cause notice is necessary notwithstanding that the appointment to the superior post was in an officiating capacity. Reversion in that case amounts to reduction in rank within Art. 177(1)(b). Equally if an order of reversion is made mala fide, Courts will strike it down not because no show-cause notice was given, but on the ground that the authority concerned has abused the power vested in the Government to terminate an officiating appointment without giving a show-cause notice. Neither condition is fulfilled in the present case. The appellant did not physically hold the post of Deputy Director. His appoint ment was 'pro forma' and 'officiating'. Unless a Government servant holds a post in a substantive capacity or for an indefinite period within the dictum of this Court in Abdul Majid Sheikh v. Mushaffee Ahmed his reversion from a superior post to an inferior post does no amount to reduction in rank, except in the circumstances explained above. The appellant failed to make out a case that he was reverted to the inferior post of Assistant Director by way of penalty or that the order was passed mala fide. On the contrary, he was asked to take charge of his substantive post pending the inquiry into charges of espionage against him. The order was obviously made in accordance with the exigencies of service. The High Court was, therefore, right in dismissing the writ petition. Before concluding we would like to point out that the appel lant was approved by the Departmental Committee for promotion in their meetings held on October 26, 1966, and May 16, 1966. He was appointed as pro forma Deputy Director in absentia on the basis of his seniority. It appears that on reversion from the Ministry of Foreign Affairs he was not given the post of Deputy Director because of the events which had occurred in Rangoon. In law the Government was competent to make this order, but if the appellant has been exonerated honourably from the charges of espionage, his remaining service should not remain under eclipse. We see no other possibility for a Government servant who is charged for espionage and is not completely cleared of that charge cannot be retained in service for a moment. If the inference drawn by us is correct, it is for the Department to do justice to his cause and give him such relief to which he be entitled under the conditions of his service. With the observations made above, we dismiss the appeal without making any order as to costs. K. B. A, Appeal dismissed.