P L D 1961 (W (PLP)

(c) A declaration that the plaintiff is entitled to be re‑instated as Store‑Keeper with effect from the 24th December 1948 and to be subsequently appointed as Senior Store‑Keeper with effect from the 5th July 1949." The suit was heard by the IV Additional District Judge, Karachi who, by his judgment dated 11th August 1958, declined to grant any of the declarations sought for by the appellant. He, however, granted him a decree for the costs of the suit. Sardar Muhammad has appealed to this Court.

2. The facts, relevant for the consideration of this appeal, are as follows: The appellant was appointed as lower division clerk in the Royal Air Force in the pre-partition India on 4th January 1937 in the pay scale of Rs. 45‑21‑

100. He was confirmed in this post in the year 1939 and was promoted as an upper division clerk in the pay scale of its. 95‑71‑140‑10‑300 with effect from 23rd February 1944. On 12‑8‑1946 he applied‑to the Director of Equipment, Civil Aviation, Government of India, New Delhi, for appointment to a suitable post and the Director General, Civil Aviation by his letter dated 25‑9‑1946 offered him the post of store‑Keeper at Rs: 125/‑ per month in the scale of Rs. 80‑4‑120‑5‑200 at Civil. Aviation Training Centre (India), Saharanpur. It was stated in that letter that the post was permanent, but Mr. Sardar Muhammad would be on probation for a period of one year. The appellant accepted this offer and was appointed as store‑keeper on 1‑10‑1946 and was posted to Saharanpur on the partition of the Sub‑Continent he opted for Pakistan and on 3‑9‑1947 joined at Karachi as store‑keeper of the Civil Aviation Department. As a store‑keeper he earned two annual increments so that his pay was raised to Rs. 130 with effect from 1‑10‑1947 and to Rs. 135 with effect from 1‑10‑

48. He was, however, not formally confirmed though his period of probation, which had been fixed for one year, expired on 30th September 1947. On 24‑12‑1948 the appellant was appointed as Aerodrome Operator' on trial with immediate effect along with 15 others by the order of the Director General, Civil Aviation. The scale of pay of the Aerodrome Operator at the tithe of the appellant's appoint was Rs. 120‑5‑135‑71‑180‑10‑230, which was subsequently revised with effect from 1‑1‑1949 to 125‑10‑225‑EB -10‑275‑EB‑25 ‑300, but before the appellant was appointed as an Aerodrome Operator his salary had been refixed in consequence of a letter received from the Government of India, Exh. 24 at Rs.

120. This was as a result of the further scrutiny by the Government of India, which found that the appellant at the time of his appointment as a store‑keeper had put in only 9 years of service and not 11 years as had been assumed when his starting salary was fixed at Rs.

125. It was therefore, pointed out that his initial salary at his appointment as store‑keeper on 1‑10‑1946 should have been Rs. 112 per month and not Rs.

125. The appellant protested against this reduction of salary by his letter dated 15th March 1949, Exh. 5, and prayed that if his request for the refixation of his salary, at a step higher than the pay that he was getting as a store‑keeper, could not be acceded to, then he should' be reverted as a store‑keeper. The appellant had also complained against the temporary nature of the post of the Aerodrome Operator to which he had been appointed. To this, the Director General replied by his order dated 25‑4‑1949, Exh. 7, and he was informed of the circumstances in which his pay had been refixed, and as regards the question of the temporary nature of the post he was told that all posts under the Government of Pakistan at that time were sanctioned on a temporary basis and that he could not, therefore, be confirmed in his appointment as a store‑keeper. He was then asked whether he would still wish to revert to the post of store‑keeper. The appellant, by his letter dated 24th July 1949, Exh. 9, informed the Director General that he should be reverted as a store‑keeper. In consequence of this and similar representations by the appellant, the Director General, by his letter dated 25th October 1949, Exh. 12, reverted the appellant from the post of Aerodrome Operator to that of Store‑keeper and transferred him to Dacca. The appellant then again approached the Director General on 3rd November 1949 by his application, Exh. 13, asking for the revi sion of the order posting him at Dacca and praying that he should be retained at Karachi as Aerodrome Operator and requesting that the orders posting him as a store‑keeper should be cancelled. The Director General however was firmed so that the appellant made another representation on 20th January 1950, Exh. 15, wherein he prayed that he should either be appointed as Senior Store‑keeper with retrospective effect or he should be appointed as Aerodrome Assistant and his pay be refixed or he should be reverted to his parent office, Air Head‑quarters Pakistan, in which case the period that he had spent in Civil Aviation Depart ment may be counted towards his appointment as Upper Division clerk and he should get the same salary as his other colleagues were getting i.e. Rs. 165 per month with effect from 1‑1‑1949. The R. P. F. Head‑quarters were then contacted and the appellant was ultimately reverted back to his parent office. He was relived from the Civil Aviation Department on 9‑3‑51 and joined the R. P. F. on 15‑3‑51, and though, he was first posted as lower division clerk but the mistake was soon corrected and he was appointed as an upper division clerk with effect from 16‑3‑

51. He was then appointed as a stenographer in that department with effect from 31‑3‑51 in the scale of Rs. 160‑‑10 ‑‑250‑15‑235, where he is continuing to work.

3. It appears that the appellant had made representations to the Central Government about his salary and on 16th October 1956 the Assistant Secretary of Defence informed the Director- General as per Exh. 2 that the President had been pleased to order the restoration of the pay of Mr. Sardar Muhammad from Rs. 112 to Rs. 125 with effect from 1st of October 1946 as a store‑keeper in the Civil Aviation Department. The appellant in his evidence stated that in spite of this order he had not been paid his salary at this rate. He, however, admitted in cross‑examination that he had not made any effort to recover the money at the rate fixed by the President, and Mr. Nasiruddin, the learned Advocate appearing for Pakistan, stated before us that if the appellant takes necessary steps the Government will pay the money due to him in conse quence of the order of the President.

4. The appellant after his unsuccessful representations addressed to the Officer Commanding about the refixation of his salary ultimately sent a notice under section 80, C.P.C. on 23‑12‑55 and followed it up by a, suit, which he instituted on 5th October 1956 which has been disposed of by the learned Additional District Judge as stated above. We have now to consider' whether the learned Additional District Judge has erred in not granting the declaration sought for by the appellant and whether he is entitled to get all or any of them.

5. Before us Mr. Safdar Shah, the learned Advocate for the appellant, strenuously contended that on the expiry of the period of his probation in the post of a store‑keeper the appellant should be deemed to have been confirmed in that post, particularly because after the expiry of the said period he had earned two increments which amounted to a positive act by the department indicating that he had successfully completed his period of probation. He then contended that if this position was accepted he was entitled to the declaration contained in para.(c) of the prayer clause of his plaint which had been reproduced above. Mr. Nasiruddin, 'the learned Advocate for the respondent, on the other hand argued that in the absence of an actual confirmation the appellant could not be treated as having been confirmed in the post of store‑keeper, merely because he had served out his period of probation of one year. With regard to the two increments he said that it must have been given by mistake due to no receipt of relevant record from India. We are not inclined to accept the soundness of his stand. In para. 8 of the plaint the plaintiff had asserted that he had suc cessfully completed his one year's period of probation on 30th September and should be deemed to have been confirmed. He relied on the Cabinet Secretariat Memorandum dated 10th Novem ber 1949 in support of his assertion. The defendant replied to this averment in para. 5 of its written statement which reads as follows:‑ "That in para. 8 of the plaint it is not denied that the plaintiff completed his period of probation on 30th September 1947, but the contents of the rest of the paras are denied. The notification marked `S' filed by the plaintiff prescribes merely the procedure and does not confirm the plaintiff in his appointment without specific order in that behalf by the appointing authority." It may be noticed that the defendant admitted the position that the plaintiff had completed his period of probation on 30th September 1947, but it was contended that there was no specific order of con firmation. But in reply to the plaintiff's representation the defendant had, in its memorandum dated 25‑4‑49, Exh. 7, given the reason for non‑confirmation as follows:‑ "All the posts under Government of Pakistan, at present, are sanctioned on a temporary basis and as such he (plaintiff) could not be confirmed in his appointment as store‑keeper." In view of all this we have no doubt that had the plaintiff remained in his post of store‑keeper he would have been confirmed in ordi nary course with effect from 30th September 1947. We cannot however grant him the declaration prayed for, because he declined to go back to his post of store‑keeper at Dacca. The appellant was appointed as an Aerodrome Operator on 24‑12‑48 and after that date he has never gone back to the post of the store‑keeper and is continuously serving in his parent department since 15‑3‑

51. The relief of declaration is a discretionary relief and the Courts do not grant a declaration which would be ineffective and, therefore, for the reasons given earlier we are of the opinion that the declaration sought by the appellant (plaintiff) in clause (c) of his prayer clause cannot be given.

6. With regard to the declaration sought in clause (b) of his prayer clause, as far as the question of his salary in the post of the store-keeper is concerned that ha already been decided in his favour by the order of the President as contained in Exh

2. With regard to the posting of the appellant as an Aerodrome Operator on 24th December 1948 we are clear that this was not a case of reduction in rank. In fact, the only grievance of the appellant after his appointment as Aerodrome Operator was about the reduction of his salary which had been done in consequence of the communications received from the Government of India, but which question was decided by the President in favour of the appellant as shown above. As for the grievance that the post of Aerodrome Operator was a temporary one it was made clear by the Director -General's letter, referred to above, dated 25th April 1949, (Exh. 7), that all the posts at that time were sanctioned on a temporary basis: In any case, since the appellant did not continue in the post of the Aerodrome Operator and reverted back to his parent office the question whether the post of Aerodrome Operator was temporary or permanent is of no significance for the purposes of the suit. With regard to the third part of the relief in clause (b) namely the grievance of the reversion of the appellant to 'the post of a lower division clerk on reduced pay, we are of the opinion that this was a just grievance of the appellant. He was, however, immediately appointed in the grade of the Upper Division, Clerk, but even this might not have been a sufficient recompense to the appellant because his pay would still be not what he would have been entitled to, had .be continued in his parent department as an upper division clerk, to which post he had been confirmed before partition. Conscious of this position the appellant was appointed as a stenographer on 31‑3‑51 in the scale of Rs. 160‑10‑250‑15‑

325. The grievance, therefore, has been substantially redressed. We would, however like to observe that the appellant having been reverted back to his parent office he would normally be entitled to claim that the entire period of his service in the Civil Aviation Department should be counted as service in his parent department. We do not, however, think that any declaration is required to that effect.

7. With regard to the declaration in clause (a) of the prayer clause in the plaint we have not been shown as to in what manner the guarantee of the condition of service given to the appellant at the time of his option for service in Pakistan has been broken. We do not, therefore, find any reason for the declaration claimed in clause (a).

8. For the reasons given above we dismiss the appeal but in the circumstances of the case make no order as to costs. K. B. A. Appeal dismissed.