P L D 1957 Karachi 804 (PLP)

WAHIDUDDIN, J.

This judgment will dispose of the two Writ Petitions namely Petition No 159 of 1956 and Writ Petition No. 11 of 1957. Both the petitioners have challenged their reversions to the post of Upper Division Clerks in the Superintending Engineer's Office, a subordinate office of the Public Works Department. Before dealing with the points at issue, it will be neces sary to narrate the circumstances in which these petitioners are reverted. Manzoor Hasan Rizvi, was appointed as "C" grade clerk in the Central Office of the Central Public Works Department, India, New Delhi, and with effect from 1st Sep tember 1944 was given the higher pay scale of a 3rd Division Clerk of an attached office of the Government of India. On 5th May 1945 he was promoted as Assistant in the unified pay scale of Rs.100-10-200 in the Central Office, Central Public Works Department, and continued to work in that capacity till Partition. He opted for Pakistan and by an order dated 5th August 1947 was directed by the Administrative Officer to report to the Superintending Engineer, Central Circle, Karachi. After reaching Pakistan he resumed duty as an Assistant ("A" Grade Clerk) in the office of the Chief Engineer. During the war and after Partition till June 1949 these posts were temporary. On 16th July 1949 the petitioner, while continuing to bold the post of an Assistant in the Vi Chief Engineer's Office, was provisionally confirmed as a clerk with effect from 15th August 1947. In September 1949 the office of the Chief Engineer Pakistan Public Works Department was raised to the status of an attached office of the Government of Pakistan. On 24th October 1951 the Chief Engineer, Pakistan Public Works Department, in accordance with the instruction issued by the Cabinet Secretariat (Estab lishment Branch) confirmed the petitioner substantively as an Upper Division Clerk in his office with effect from 19th August 1950. Two other important steps were also taken during this period On 28th July 1948, against the posts of Assistants "A" grade clerks in the Construction Circle, the petitioner was declared as a substantive holder of the tempo rary post and the column "Office to which attached" showed Chief Engineer's Office. On 1st April 1949, the Governor-General under subsection (2) of section 241 of the Government of India Act, was pleased to make the following rules: "(8) Notwithstanding anything contained in rules 5 to 7 above, in the case of a Government servant holding a post on the unified scales of pay the following provisions will apply: (a) 'A' Grade Clerks in the Secretariat and attached Offices will be allowed to continue in the 'A' Grade Scale until they are approved by the Departmental Promotion Committees for Employment as Assistants. Those selected will be treated as if they have been promoted to the scale prescribed for Assis tants and their pay fixed at the next stage above their present pay from 1st c7anuarv 1949. For this purpose those who have already been approved by Departmental Promotion Committees for retention as Assistants will be deemed to have qualified for promotion as Assistant in the prescribed scale. Those who are not selected will be brought into the scale of Upper Division Clerks namely Rs. 85-6-115-EB/15/2/175-EB-10-225 and their pay fixed at the stage next above their present pay from the same date. They will, however, be eligible for consi deration on one further occasion for promotion to the grade of Assistants. (b) 'A' and 'B' Grade Clerks in the Audit Department and other subordinate offices will be fixed in the scale of Upper Division Clerks mentioned above at the stage next above their present pay. 'A' Grade Clerks may, however, at their option, elect to remain on their existing scale till they reach the maximum of that scale. (c) 'C' Grade Clerks in the Audit Department and other subordinate offices will be fixed in the scale of Rs. 60-4-100 EB-5-120 at the stage next above their present pay according to the provisions of Rule 5. (d) Routine Grade Clerks in the Secretariat and Attached Offices who are now in the scale of Rs. 60-5-100-EB-10-120 will be allowed to retain their existing scale or to come on the Lower Division Scale namely Rs.60-4-100-EB-5-120. In the former case, they will be allowed two increments in their present scale, but if they elect the prescribed scale their pay will be fixed in that scale at the stage next above their existing pay increased by two increments. They will also be considered for promotion to the Upper Division Scale namely Rs.85-6-115-EB-15/2=175-EB-225 against Upper Division posts that are to be sanctioned in those offices. (See Note I to the Schedule) Government have decided that for the next two years there will be no direct recruitment to the cadre of Upper Division Posts". The scale of pay of Assistants and Upper Division Clerks in the Chief Engineer's Office was raised up to Rs. 400 and Rs. 225 respectively. The pay of Upper Division Clerks in the Superintending Engineer's Office was fixed at Rs. 85-6 115-EB-15/2-125-EB-10

225. On 22nd July 195'3, the Ministry of Health and Works decided to reduce nine Assistants, two Upper Division Clerks and twenty Lower Division Clerks from the Chief Engineer's Office. The petitioner was declared supernumerary under a communication dated 31st May 1954. It is reproduced below (After reproducing the communication dated 31st May 1954 as well as other official correspondence and memorenda resulting in reversion of the petitioner to the post of Upper Division Clerk and transfer to the office of Superintending Engineer, Central Circle, Pakistan P. Lid. D., the judgment proceeded). The petitioner has challenged these orders inter alia on the ground : - "The petitioner was holding-the post of an Assistant (also called "A" grade clerk or First Division Clerk) continuously since the 5th May 1945, namely, for more than (sic) years', and it was immaterial that he had not been confirmed in the grade of Assistant, as his promotion to Assistant's grade was for an indefinite period, 'and' the provisions of sub section (3) of section 240 of the Government of India Act 1935, apply to the reduction in rank of a civil servant holding a higher post in a temporary capacity for an inde finite period.\ The alleged ground of being supernumerary did not vali date the petitioner's reversion from the rank of Assistant, because several persons junior to him have been retained as temporary Assistants, which is irregular and unjustified, as retrenchment or reversion on the ground of supernu merary should commence from the bottom, namely, with the junior most incumbent. It is noteworthy that several Upper Division Clerks who were not holding the posts of Assistants, and were juniors to the petitioner, have since been promoted to Assistant's grade. Even if it is supposed that the petitioner was supernu merary in the office of the Chief Engineer, Pak. P. W. D., he was entitled to have been transferred to hold the post of an Assistant in any other "attached" office of the Govern ment of Pakistan. The withdrawal of his nomination to hold the post of an Assistant in the office of the Director General of Health (Pakistan) was unjustified and based on flimsy ground. That the transfer of the petitioner from the office of the Chief Engineer, Pak. P. W. D., to a "Circle" office, namely, the office of the Superintending Engineer, Central Circle, Pak. P. W. D., Karachi, did, in itself, amount to petitioner's reduction in rank and not to a breach of the conditions of his service as shown below: The petitioner entered Government service and continued to be in Government service in the Central Office of the Central P. W. D. (India) and was placed in the pay scale of an "attached" office since the 1st April 1944, and is there fore entitled to be retained in service in its counterpart in Pakistan, namely, the office of the Chief Engineer, Pak. P. W. D., or in any other attached office of the Government of Pakistan, whereas the "Circle" office to which he has been transferred is a "subordinate" office. In the said subordinate office there are no posts of Assistants in the pay scale of Rs. 160-400, and consequently the petitioner's trans fer as Upper Division Clerk to the said circle office would virtually debar the petitioner's re-promotion to the grade of Assistant in the pay scale of Rs. 160-400 and would there by mar his future career". The other petitioner Hasan Ali Jafri was also promoted as III Division Clerk with effect from 1st April 1944 in the Central Office of Central P. W. D., New Delhi on the attached office scale of pay. He was further promoted as officiating Assistant in the Chief Engineer's Office with effect from 7th December 1944 on 'A' grade unified scale. At the time of Partition the petitioner was working as officiating Assistant in the Central office, Central P. W. D. and drawing a salary of Rs.

120. In that capacity he joined the Chief Engineer's Office in Pakistan Central P. W. D. He was also declared on 28th July 1948 as substantive holder of temporary post of Assistant in the Chief Engineer's Office. After the Pay Com mission Report was adopted he was also approved by the Departmental Promotion Committee for promotion as Assis tant. In his service book, however, his scale of pay was fixed at Rs. 90 one (sic) in the scale of Rs. 75-5-100-5-180 and the other Rs. 160 in the scale of Rs, 160-10-250-EB-15-400. It seems he was getting Rs. 90 pay in the substative appointment and Rs. 70 as additional pay for officiating. On 15th Decem ber 1954, he was confirmed with effect from 15th August 1947 as Lower Division Clerk and with effect from 21st January 1954 as substantive holder of a temporary post of Assistant. By an order dated 3rd November 1956 the petitioner was reverted to the post of Upper Division Clerk to the Circle Office in Refugee Works Circle, P. P. W. D., Karachi. This petitioner has challenged this reversion on the ground that he was confirmed as Lower Division Clerk in the Chief Engineer's Office, he came from the Central Office of Central P. W. D., India to Pakistan and therefore his reversion could only be to the Chief Engineer's Office, Pakistan P. W. D. Mr. Nasiruddin and Mr. Raymond, counsel for the respon dent frankly admitted that both the petitioners after Partition were absorbed in the Chief Engineer's Office, Pakistan P. W. D. and were also the substantive holders of temporary Assistants in that office till they were reverted. Both of them, however contended that the petitioners were transferred to Pakistan P. W. D, as "A" grade clerks of category "B" to the office of the Superintending Engineer, Karachi, that they were wrongly absorbed in the Chief Engineer's Office, that the substantive post of petitioner Rizvi was Upper Division Clerk in the subordinate office and of petitioner Jafri was Lower Division Clerk in subordinate office and therefore they have been rightly reverted to the Superintending Engineer's Office. They further contended that the various orders issued by the Chief Engineer and Cabinet Secretariat were made inadvertently, they were subject to reversion on disclosure of facts which might have escaped the notice of that Depart ment. The orders of reversion were also justified on the ground that "they are on the basis of representation made to the Ministry by others who had been the victims on account of the irregular mistake of some persons from the subordinate office". It gives direction to correct the injustice done to staff of the Chief Engineer and to revert those subordinates of the subordinate offices who have been taken irregularly in contravention of the standing instructions as contained in para 13 of Exh. A/4. Para 13 (Exh. A/4) is: "

13. Under the order contained in this Department's letter No. 331 E/Camp, dated the 29th May 1942, 50010 of the vacancies in the grade of Assistant in the Central Office are required to be filled by departmental promotion. It has now been decided that 20010 of such vacancies should in future, be set apart for recruitment from amongst expe rienced men employed in the offices of the different Superin tending Engineers". Para 16 of the counter-affidavit filed by Mr. Ashraf Ali Siddiqui in Writ Petition No. 11 of 1957 will further throw light on the position of the Department in this matter. Para 16 is: "That the remaining paragraphs which are at variance with the facts as set out above are denied. The petitioner was not the only clerk to be reverted from the Chief Engineer's Office to his parent office. Such action was also taken against some other clerks some of whom made repre sentation as soon as they came to know that such action was contemplated. Moreover, it is clear from the above paragraphs that although the mistake in the transfer of the petitioner to the Chief Engineer's Office was discovered in 1949, the rectification order was only made 7 years later. During this time, the case of each clerk was carefully scrutinised and examined. Each clerk was fully aware of what was happening and the action that was proposed to be taken against him. During all this time these clerks were not silent but made ample representations and expla nations against the proposed order. Thus it cannot be said that no opportunity of being heard was afforded to the petitioner and others like him. Therefore, the petitioner's petition is misconceived. He is not entitled to any of the relief, orders or directions claimed by him. Moreover he has alternate remedies open to him. This petition should be dismissed with costs". Further it was urged that the orders in question are admi nistrative measures and they cannot be challenged in a Court of law. The sole question in which the decision of these writ petitions rests is whether the petitioners at the time of Parti tion were working as temporary Assistants in the subordinate Office of Central P. W. D.. New Delhi and were in the scale of pay of an Assistant in the subordinate office of the Superin tending Engineer. We have carefully examined all the documents produced on the record and have also considered the affidavits, of the parties particularly the affidavits one of Mr. Akbar Kabir in Writ Petition No. 159 of 1956 and Ashraf Ali Siddiqui in Writ Petition No. 11 of 1957. The affidavits of these two gentlemen, instead of clearing the issues, have further confused the matter and tend to complicate the ques tion under consideration. It is admitted by Mr. Akbar Kabir that petitioner Rizvi opted for Pakistan as officiating Assistant in the unified scale of the Central P. W. D, in the pay scale of Rs. 80-10-200, but according to him this scale of pay is of "A" grade clerk of category "B" of Exh. A/6. This fact was not checked at the time of his absorption and therefore by mistake he was taken in the Chief Engineer's Office. He has also stated that this was a bona fide mistake and that the Department on the disclosure of facts was entitled to undo the wrong done to the clerks in the Chief Engineer's Office. In order to appreciate the contention of the parties it will be proper to mention here that on 7th June 1944 certain posts were created in the Central Office of the Central P. W. D. Exh. A/4 is a letter from the joint Secretary to the Government of India intimating this decision to the Additional Chief Engineer, Central P. W. D. it says: (After reproducing Exh. A/4, as well as a number of other official documents in extenso, the judgment proceeded-). There is not the slightest doubt in our minds that till' Partition Rizvi was working as Assistant in the Chief Engineer's Office in the Central P. W. D. He was appointed in that office and he was promoted in that office. There is, therefore, no foundation in the allegation of the res pondent that Rizvi made any misrepresentation and it was on the basis of this misrepresentation that he was absorbed in the Chief Engineer's Office after Partition. As regards Hasan Ali Jafri, he was also promoted as Assistant from 7th December 1944. According to Annexure A/2 of his writ petition. on 8th March 1946 the Chief Engineer, Central P. W. D. in pursuance of the office memorandum of the Finance Department, dated 19th August 1944, 3rd January 1945 and 25th January 1945, his scale of pay was fixed as an Assistant with effect from 7th December 1944 at Rs

100. So, this gentleman was also working in the Chief Office at the time of Partition and the contention that any misrepresentation was made by him or he was absorbed in the Chief Engineer's office in the Pakistan P. W. D, after Partition on account of a bona fide mistake, is also not at all well-founded. The most important feature of the case is that after Partition both the petitioners were appointed in the Chief Engineer's Office except for a few months when they were posted in the Superintending Engineer's Office, but that does not establish in any way that they were holding any permanent post in the subordinate office of the Superin tending Engineer. Any transfer of a person holding a post in the Chief Engineer's office to a subordinate office cannot in our opinion affect his position or his lien in the Chief ! Engineer's Office. The contention of the respondents is also~ belied by the fact that petitioner Rizvi was declared a substantive holder of the temporary post of Assistant in the Chief Engineer's Office on 28th July 1948 vide Exh. B/1 produced by the respondent. The annexure to this document at page 109 of the paper book will show that the scale of pay of the petitioner was Rs. 100--10-200. The column '` office to which attached" shows Chief Engineer's Office, and the column " office to which at present attached " shows Construction Circle. This document conclusively establishes that this petitioner was throughout treated and considered as an Assistant or clerk attached to the Chief Engineer's Office. The position of petitioner Hasan Ali Jafri is also the same. He was also declared as a substantive holder of a temporary post vide annexure " E " to the petition, dated 28th July 1948 issued under the orders of Mr. S. Ali Amir, Chief Engineer. Not only this, but both the petitioners were further confirmed as Upper Division Clerk and Lower Division Clerk respectively with effect from 15th August 1947 in the Chief, Engineer's Office. Their position as substantive holders of temporary posts of Assistants in the Chief Engineer's Office was also recog nised as late as, in the case of Rizvi in the year 1953, and in the case of Jafri in the year 1954. The most important document produced by the res pondent in the present case is the service books of the two petitioners. They go to show that the position of the petitioners, except for few months, was always recognised as in the Chief Engineer's Office. Their cases were con sidered by the Administrative Departmental Promotion Committee for promotion as envisaged in the Pay Commission Report which was later on applied by the Governor-General in April 1949. Both the petitioners were approved for promotion by this Committee. Their pays were checked from time to time by the Assistant Accounts Officers and other Administrative Officers and at no time any objection was raised that they were drawing a higher scale of pay than the one which they were entitled to. There is not a shadow of doubt that these petitioners were holding posts in the Chief Engineer's Office and the mischief created by the letter of Mr. A. Rashid, Deputy Secretary to the Govern ment of Pakistan dated 9th/10th February 1955 viz. Exh. B/6 at page 127 of the paper book is based absolutely on wrong grounds and has no foundation at all. They are based on misappreciation of facts and confusion of thoughts on the subject under consideration. In our opinion, the approach to this question by Mr. Nurul Haq Choudry is also based on wrong assumption of facts. Both the petitioners, iii our opinion, had nothing to do with the Superintending Engineer's Office and therefore, their reversion to this subordinate office is contrary to the terms and conditions of their service. The method adopted in this case to get rid of certain persons on the ground of abolition of posts and then toy re-appoint some of the same members of the staff to the same posts, cannot be approved by this Court. The allegation that it was a device and subterfuge to get rid of the petitioners and others who were not the favourites of the respondent department cannot be summarily over looked. But we prefer not to express any opinion on this aspect of the case. The impugned orders cannot also be sustained as they not only violate the principles of natural justice but also the provisions of Article 181 of the Constitution of the Islamic Republic of Pakistan. Once it is found that the petitioner's rank in service has been reduced, the question for determination will always be whether it was made after B giving reasonable and sufficient opportunity of showing cause against the action proposed to be taken in regard to them. It is admitted that no such opportunity was given to the petitioners and in our opinion the order in question suffers from this illegality. It was, however, urged that this principle cannot be extended to cases where a substantive holder of a temporary post is transferred to his permanent position. The learned counsel for the respondent contended that petitioner Rizvi cannot claim to be reinstated to the post of an Assistant in the Chief Engineer's Office and the only relief, if at all granted to him, should be that he should be transferred to the Chief Engineer's office. This contention is also not sound as petitioner Rizvi has not been reverted to his substantive post. Moreover, declaration by the Department that a person is a substantive holder of a temporary post is not without significance and cannot be taken as completely meaningless. Such posts, as long as they exist, will be treated on a quasi-permanent' basis and if they are not abolished then the holder of such post in case of transfer, is entitled to claim for a transfer to an equivalent post. The view taken in this respect by the Cabinet Secretariat as expressed in Exh. B/5 was the correct and proper approach to the question. In our judgment it is the duty of the department concerned to give reasonable opportunity to show cause to a person if they intend to reduce his rank whether as an administrative measure or by way of penalty. No legitimate distinction can be made in cases where the action, is not taken by way of punishment. Mr. Rizvi has also taken a ground that his juniors Mr. Latafat Ali and Muhammad Aqil Khan are still work ing as Assistants in the Chief Engineer's Office although they were reverted on the pleas that the nine posts of Assistants in the said Department were abolished. The res pondent has filed the document at page 83 showing the manner in which the nine persons were appointed as Assistants in the Office of the Chief Engineer. The name of Mr. Rizvi appears at item No. 2 while those of Latafat Ali and Muhammad Aqil Khan appear at items Nos. 8 and

9. It is an accepted principle of retrenchment that it must be made from the bottom of the list and not from the top of the list. If nine posts of Assistants were abolished in the Chief Engineer's Office, then Latafat Ali and Muhammad Aqil Khan could not be retained in those posts in the said office. It is admitted by the counsel on behalf of the respondent that Latafat Ali and Muhammad Aqil Khan are still working in the Chief Engineers Office. It has, however, been contended that after the abolition of the said posts they were reverted to, their permanent posts but were re-appointed to the posts of Assistants in the office of the Chief Engineer. Firstly, there is no proof that these two persons were re-appointed after the abolition of the said posts. In the second place, even if we accept this as a correct statement of fact, it was the duty of the Department to appoint petitioner Rizvi to this particular job because he was the senior-most person. Under these circumstances, we consider that the orders of the respondents reverting petitioner Rizvi to the Superintending Engineer's Office and also removing him from the Chief Engineer's Office from the post of an Assistant are illegal and cannot be upheld. We, there fore, order that he will be reinstated to the post of an Assistant in the Chief Engineer's Office on one of the nine posts on which he had a lien. In case these posts are at any time abolished in a bona fide manner, then he will be reverted to his substantive post in the Chief Engineer's Office. We entirely agree with the contention of the learned counsel for the petitioner that if he could be accommodated in another office in case the posts of Assis tants are abolished in the Chief Engineer's Office, then the Department should consider it favourably and should accom modate him if it can possibly be done, but this cannot be claimed as of right. So far as petitioner Jafri is concerned, he has not claimed any relief about his restoration to the post of an Assistant in the Chief Engineer's Office. He has only claimed that the order of reversion to the Superintending Engineer's Office is illegal and bad. We, therefore, declare that his order of reversion to the Superintending Engineer's Office is illegal and ultra vices and lie should be restored to his permanent post in the office of the Chief Engineer, Central, P. W. D. For the reasons mentioned above, we allow the petitions and order that writs containing the above-mentioned direc tions be issued to the respondents. We further order the respondents to bear the costs of the two petitioners. A. H. Petitions accepted.