P L D 1965 Supreme Court 725 (PLP)

MUHAMMAD YAQUB ALI, J.--‑By this appeal the Chairman of the East Pakistan Railway Board has called in question the rule issued by the High Court of East Pakistan at Dacca in exercise of constitutional jurisdiction upon the General Manager, Pakistan Eastern Railway and the District Traffic Superintendent, Pahartali, Chittagong, to cancel the order No. ES/11/(G) TC/ P11I dated the 27th November 1961, reverting Abdul Majid Sardar, respondent, from the post of a Ticket Collector to the post of a Tally Clerk in the Commercial Group of the Pakistan Eastern Railway. The facts which appear on the record are that on the 3rd November 1951, the respondent was first appointed as a temporary Tally Clerk in the pay scale of Rs. 60‑2‑80 and in due course he earned annual increments. On 13‑1‑1959 he was drawing a salary of Rs. 72 per month when by the order of the District Traffic Superintendent he was promoted temporarily as a Ticket Collector in the pay scale of Rs. 60‑4‑100‑EB‑5‑120 "subject to replacement by approved hands". On 27‑11‑1961 by the order of the District Traffic Superintendent ten Tally Clerks including the respondent who were "deputed" and "had been working as Ticket Collectors temporarily were withdrawn and put back to their former posts". By part II of the order seventeen persons who had been selected in the meantime to fill the posts of Ticket Collectors by the recruiting officer were temporarily appointed as Ticket Collectors, Grade II, at Rs. 60 per month plus allowances and posted at various places. Aggrieved by the aforesaid order the respondent filed a writ petition in the High Court of East Pakistan contending that his reversion to the post of a Tally Clerk had resulted in reduction in rank and since an opportunity to show cause against the action taken was not given to him the impugned order being repugnant to Article 181 of the late Constitution of 1956 was liable to be quashed. Relief could, however, be obtained by the respondent on showing that he had been promoted Ticket Collector in a substantive capacity for a person who was appointed to a pos temporarily or in an officiating capacity did not come to hold the rank from which he is said to have been reduced. As mentioned above the respondent was still a temporary Tally Clerk when by the order of the District Traffic Superintendent he was promoted as Ticket Collector. In the writ petition he carefully avoided to make an assertion that he was at any stage confirmed in the post of a Tally Clerk or that he was promoted to the post of a Ticket Collector in a substantive capacity. On the contrary it was averred that he had joined the Railway service on 3‑11‑1951 as a Tally Clerk and thereafter "worked to the complete satisfaction of the Department concerned and the superiors". Similarly in paragraph 7 of the petition it was said: "That in pursuance of an order No. ES‑2 (G)/PII dated the 13th January 1959, passed by the District Traffic Superintendent, Pahartali, Chittagong, your petitioner was promoted to the rank of Ticket Collector at a scale of Rs. 60‑4‑100‑EB‑5‑120 and your petitioner joined the same on 1959 and since then your petitioner has been working to the complete satisfaction of the authority and in the usual process obtained his usual annual increments". So it was not the case of the respondent in the High Court that he had been appointed as a Ticket Collector in a substantive capacity. Moreover under the rules the District Traffic Superintendent was not competent to make permanent appointment of a Ticket Collector though he could fill that post temporarily and in the instant case the Chief Traffic Manager had by letter dated the 17th January 1957, instructed him that as "a purely temporary measure the vacancies of Ticket Collectors may be filled up by senior most matriculate class III staff". It was in pursuance to these directions that the respondent along with other members of class III staff was promoted as Ticket Collector. The District Traffic Superintendent had been further required to warn all staff "thus promoted" that they will be replaced by approved hands when received from the recruiting officer who had already advertised post of Ticket Collector for direct recruitment, but it appears that although an entry to that effect was made in the service book of the respondent a separate warning as contemplated above was not given to him. This omission became a pivotal point in the whole case in the High Court. The learned Judges inferred from it that the appointment of the respondent was on a permanent basis and as the railway authorities had permitted it to remain operative for nearly three years they were estopped from claiming that the appointment was temporary or that the District Traffic Superintendent was not competent to make permanent appointment. The law of agency was also pressed into service for this purpose. The conclusions are summed up in the judgment delivered by the learned Chief Justice with whom S. D. Ahmad, J. agreed as follows "(a) Respondent No. 2, by implication, was constituted as an agent of the Railway Administration or of the General Manager to make a substantive appointment to the cost Collector. (b) It has not been proved that at the time when the petitioner was promoted to the post of Ticket Collector it was made known to him, or that he was otherwise aware, that respondent No. 2 had only a limited authority to make a temporary appointment. (c) The conduct of the respondents, by implication, amounts to a representation that respondent No. 2 (The District Traffic Superintendent, Pakistan Eastern Railway, Pahartali, Chittagong) had the authority to promote the petitioner as Ticket Collector and the petitioner having acted upon such an order of promotion, the respondents are estopped from denying that the respondent No. 2, in fact, had tile authority to make the said order unless such limitation of the respondent No. 2's authority was communicated to the petitioner or otherwise made known to him at the time of his appointment as Ticket Collector by promotion. Thus on the basis of the law of agency and of estoppel, the respondents cannot be allowed to resile from the position which the respondent No. 2 had taken, by necessary implication, in passing the order by which the petitioner joined in the post of a Ticket Collector to which he was promoted. It is true that the records of the Railway Administration will show the limited authority of respondent No. 2, but, as this was not brought to the notice of the petitioner or otherwise made known to him at the relevant time, namely, when he was promoted to the post of Ticket Collector, the petitioner cannot be bound by such limitation of authority to which respondent No. 2 may have, in fact, been restricted. The petitioner is, therefore, entitled to urge that he was substantively appointed to the post of Ticket Collector. The impugned order is, therefore, illegal and invalid." With respect the very premises on which the argument raised on behalf of the respondent was based is neither in fact nor in law correct. "Substantive" appointment is a status which may be conferred on an employee by a positive order of the competent authority or by rules of service, e.g., in case of certain services) it is provided that if the period of probation is not extended beyond a certain date the appointee shall be deemed to have been confirmed in the post. In dealing with the nature of the appointment of the respon dent to the post of the Ticket Collector the learned Chief Justice said that "when an appointment is made without any qualification that it is temporary appointment, it must necessarily mean that it is substantive appointment". No authority or rule off construction is cited in support of the enunciation and in principle we find ourselves unable to subscribe to this view. At best it was a case of an omission which was supplied by the entry in the service book of the respondent and the letter of the Chief Traffic Manager dated the 17th January 1957, addressed to the District Traffic Superintendent. That an omission in an instrument may be supplied by evidence aliundi is a well recognized rule of construction and there is no reason why it should not have been applied in the present case. The service book was ruled out of evidence on the ground that entries in it were not regularly made. The instance quoted is that "admittedly the respondent had enjoyed at least two increments which did not appear in it". There is no elaboration as to how an omission of tile nature noticed by the learned Judges could have the effect of nullifying an entry in the service book, but that was perhaps for the reason that in their view the document was of not much assistance in the context of the case presented to them. An entry in a service book made by a public servant in the discharge of his official duty is under section 35 of the Evidence Act a relevant fact and under section 114, illustration (e), there is a presumption that official acts have been regularly performed. The entry in the service book of the respondent, viz. "promoted to T. C. (temporarily) subject to replacement by approved hand" was therefore a material fact to which due weight had to be given in whatever manner the case for the respondent was presented. Further as seen above the respondent had himself carefully refrained from asserting his promotion to the post of Ticket Collector in a substantive capacity. On the material placed before the High Court the conclusion was therefore inevitable that the respondent was temporarily holding the post from which he was reverted to his former post of a Tally Clerk. As to the application of the rule of agency and estoppel to the facts of the case we do not find any declaration, act or omission intentionally caused or permitted by which the respondent came to believe that he had been promoted in a substantive capacity. In fact that was not even his case in the High Court. There was thus no question of the respondent acting upon such a belief. He had been temporarily appointed to a higher post and enjoyed its benefit till the day he was reverted from that post. The condition of "acting upon such a belief" ‑as contemplated in section 115 of the Evidence Act which embodies the rule of estoppel was therefore not fulfilled. It is unnecessary to discuss for the purpose of this order howl far the rule of agency applies to a Government employee for the reason that the authority of the District Traffic Superintendent in the instant case was restricted in writing by the Chief Traffic Manager and no material was placed on the record to indicate that the railway authorities had knowingly acquiesced in an order) allegedly made n excess of that authority. None of the Grounds on which the order appeal is based thus holds good, but before we conclude it appears appropriate to observe that acts performed and orders made by public authorities deserve due regard by Courts and every possible explanation for their validity should be explored and the whole field of powers in pursuance to which the public authorities act or I perform their function examined and only then if it is found that the act done, order made or proceeding undertaken is without lawful authority should the Courts declare them to be of no legal effect. In the instant case the order in appeal not only operates in respect of the respondent, but is liable to affect also the case of a large number of staff' who were promoted as Ticket Collectors on a purely temporary basis with the result that the order of reversion in the case of each one of them might stand vitiated and as a consequence thereof those who were recruited on a regular basis by process of selection and had replaced them may have to be retrenched. Such a result should have been achieved only if the impugned order was on no hypothesis capable of being maintained whereas from the material placed on the record in our view only one conclusion could be drawn, namely, that the respondent having been temporarily promoted as Ticket Collector his reversion to his former post of a Tally Clerk did not amount to reduction in rank within the purview of Article 181 of the late Constitution of 1956. For the foregoing reasons we allow this appeal and direct that the rule issued by the High Court upon the appellants be recalled. In the circumstances there will, however, be no order as to costs. A. H. Appeal allowed.