P L D 1961 Dacca 186 (PLP)

AKBAR, J.‑The petitioner Muhammad Siraj Mian, a con firmed Jetty Inspector of the Port of Chittagong Railway, was appointed as Officiating Assistant Jetty Superintendent on 5th March 1957. On 2nd January 1957, the General Manager consti tuted an Ad‑hoc Selection Board consisting: of four officers for the purpose of making recommendation of subordinates considered suitable for promotion to Lower Gazetted Service. The Board. after holding an examination, interviewed twelve Officers, and recommended three names including that of the petitioner. On 28th May 1957, the above recommendation of the Board was accepted by the General Manager. On 10th June 1957, the Deputy Traffic Manager issued the following order : "As per recommendation of the Selection Board held in the office of the ENC/PC/CRB at 10‑00 firs. on 18th May 1957, for making panel of LGS Officers which has been accepted by the GM/Port, the following candidates have been declared as approved for the post of AJS. Their names have been shown as per merit (1) Mr. D. B. Digboy, Offg. AJS (I)/CGD. (2) Mr. M. S. Mian, Offg. AJS (E)/CGD. (3) Mr. I. S. Khan, Offg. YT/NM Officiating services of M/s. Digboy and M. S. Mian have also been taken as approved from the date of their Offg. in the post." A copy of the above order was forwarded to the petitioner.

2. Mr. N. G. Sen, Jetty Inspector, Mr. J. Polacco, Yard Inspector, and Mr. K. G. Mohiuddin, Section Superintendent of General Manager submitted representations pointing out various irregularities in the mode of selection, and prayed for cancellation of the order of 28th May 1957, approving the selection. Their representations were however, not placed before the General Manager till November 1957. On 21st November 1957, the General Manager considered their representations favourably and cancelled the selection. On 23rd November 1957, the following order was issued from his office : "Minutes of the Selection Board held on the 18th May 1957, for promotion to the post of A. J. S. as communicated under this office letter of even number, dated 31st May 1957, is to be treated as null and void. The candidates who were approved through this Board may be informed accordingly." The Deputy Traffic Manager communicated the above order to the petitioner.

3. The General Manager then constituted another Selection Board, and 14 Officers including this petitioner appeared in the selection test held by the Board on 28th December 1957. On 16th January 1958, the petitioner submitted a representation pointing out the following irregularities in the examination conducted by the Board : (1) That there was only one written paper contrary to the announcement that there would be two written papers; and (2) That one Matiur Rahman was not eligible to appear in the selection test. The petitioner, however, was not selected by the Board, and an order was issued on 27th February 1958, reverting him to his subs tantive post of Jetty Inspector. On 15th March 1958, he filed an appeal before the General Manager against the order of rever sion on the following grounds (a) That there were irregularities in second selection test ; and (b) That there was no reason for cancelling the previous selec tion of May 1957.

4. On 10th May 1958, he filed an appeal before the Director General of Railways against the order declaring the first selection null and void. Failing to get any relief his lawyer gave a notice of demand of justice on Ist July 1958. Thereafter, the petitioner moved the High Court of West Pakistan for an appropriate writ. The said High Court returned the petition on the ground that it had no jurisdiction to entertain the petition. He then moved this Court on 28th August 1958, and obtained a Rule calling upon the respondents to show cause why the orders passed by respondent No. 2 on 23rd November 1957, and 27th February 1958, should not be cancelled or rescinded.

5. By order, dated 23rd November 1957, the selection of 18th May 1957, was declared null and void.

6. Mr. Khondkar, the learned Advocate for the petitioner has contended that the General Manager had no power to cancel the recommendation of the Selection Board. Mr. Chowdhury, appearing for respondent No. 2, has contended that the petitioner, having acquiesced to the cancellation of the first selection, is pre cluded from challenging the order, dated 23rd November 1957.

7. The first question is: Whether the General Manager was competent to declare the selection null and void ? The letter of the Director‑General of Railways, dated 14th November 1953, which is annexure `A' to the petition, lays down the procedure for selection and preparation of panels of L. G. S. and other Class II Officers on the Pakistan Railways. It is mentioned therein : "The recommendations of the Departmental Promotion Com mittees on the Railways, to be now called Selection Boards should accordingly be scrutinised, and finally dealt with by the General Manager." This letter lays down the procedure of selection in detail. There is nothing in the letter to show that the General Manager is bound to carry out the recommendation of the Board. All that can be said is that the General Manager cannot refuse to accept the recommendation arbitrarily and capriciously. There may, how ever, be cases where, for good and sufficient reasons, he is unable to accept the recommendation; and in such cases it will be diffi cult to say that the General Manager has acted in excess of his power. This is also evident from the fact that the power of scrutiny and final acceptance is left to the General Manager.

8. The letter, dated 10th June 1957, of the Deputy Traffic Manager, shows that the recommendation of the Selection Board was accepted by the Manager, and the petitioner, Muhammad Siraj Mian, was declared as approved for the post of Assistant Jetty Superintendent. Three of the Officers appealed to the General Manager against the recommendation of the Selection Board. Their appeals were, however, not placed before the General Manager till 21st November 1957. The General Manager after commenting on the conduct of the Assistant Personal Officer for not placing the appeals before him earlier, passed the following order : "These appeals, and particularly the office note put up the Head Clerk of the Establishment Section, have thrown new light on this case. Putting it mildly, I am extremely unhappy to see what has been done, and steps must be taken immediately to undo it forthwith. I have strong doubts in my own mind that this selection was not absolutely fair, and the Selection Board was probably not in possession of full facts about all the candidates they called for this interview. My predecessor had clearly laid down in his note of 27th April 1957, at p. 5 that only those of the staff were to be called for this selection who were working in the scale of Rs. 185‑300, either in a substantive or in an officiating capacity, provided that those who were officiating in this scale had been confirmed in the scale of Rs. 125‑225, etc., etc. Mr. I. A. Khan, who was substantively an Assistant Yard Master, was working in Rs. 185‑300 scale, although he is said not to have been approved for the post. Orders for his rever sion to go back as an Assistant Yard Master, consequent upon Mr. Polacco's reversion to the post of a Yard Inspector, had been received from the DGM (P)/EBR, vide his letter No. 447 E/91'4‑Port B‑II (CFN), dated 22nd April 1957, and had these orders been given effect to Mr. I. A. Khan would not even have been eligible for this selection. What actually happened was that Mr. Polacco was not sent back as Yard Inspector, and Mr. I. A. Khan, therefore, conti nued to act in the higher scale of pay not only till the day of the selection, but till some little while afterwards. Incidentally, Mr. Polacco was sent as Yard Inspector on 1st August 1957. The Personnel Branch was in the full knowledge of this fact, and, as such the APO who was also acting as the Secretary of the Selection Board should have advised them on the day of the selection, i.e., on 18th May 1957, that in view of the GM's direc tive, Mr. I. A. Khan was no longer eligible for this selection. This was not done. Then again the calibre of the question paper set is extremely poor. The comparative worth of the candidates cannot be judg ed on such single question. Although the Selection Board is at liberty to decide how best to conduct such a selection, the question papers which they set on the E. B. R. on 15th May 1957, for similar selection, were so different‑and here it may be added that DGM (P)/EBR was member of both the Selection Boards‑from the flimsy question paper which was set for our selection, when doing practically the highest selection, which the Railway Administration has been permitted to do, the test to be given to our senior subordinates must be of such a screening standard as to convincingly bring ,out the best man out of the lot. One question, only peculiar branch of working, should and must never from the basis of our selection when candidates came up from different branches of Railway or Port working. There is one more thing that I would like to put down. Recently, while one of the Assistant Jetty Superintendents, Mr. Ashfaque, was on leave, and Mr. I. A. Khan had been pro moted to work in his place, quite a lot of pressure was brought on me to let Mr. Ashfaque go to the Railway so that Mr. Ikram could continue uninterrupted. This is another factor which inclines me towards strong suspicion that there are forces acting in favour of Mr. I. A. Khan, and obviously to the detriment of others. The Selection Committee :met on 18th May 1957, and their proceedings were approved by me on 28th May 1957. On 3rd June 1957, was received an appeal from Mr. Sen and had this appeal been put up then and there, the wrong which is now being righted could not have come to pass. I would have reconsidered my decision about the selection proceedings and probably, order ed a fresh Selection Board, as I do now. The previous selection should be considered as null and void. Fresh selection should be ordered, preferably with the following Officers on the Board : (1) Mr. C. E. Mahmud, CTM/EBR, as Chairman. (2) Mr. A. K. Chaudry, ENC/PC, as Member. (3) Mr. Khuda Bakhsh, DGM/(P)/EBR, as Member. (4) Mr. M. K. Nabi, APO/Port, as Secretary. Candidates to be interviewed must conform with the orders of my predecessor, as detailed at p. 5 of this tile, and I will request the Selection Board to set at least two written papers." The General Manager has given cogent reasons for cancelling the selection.

9. Mr. Chowdhury has submitted that the General Manager had merely approved the recommendation of the Selection Board for inclusion of the petitioner's name in the panel of officers fit to act as A. J. S., and hence he had power to cancel the selection. The letter, dated 10th June 1957, supports the contention of Mr. Chowdhury that in pursuance of the recommendation of the Selection Board the petitioner's name was included in the panel of officers fit for promotion as A. J. S. The direction issued by the Director‑General of Railways shows that the General Manager is to scrutinise the selection, and then to pass final orders. In other words, the General Manager may or may not accept the recom mendation of the Board. Simply because he had accepted the recommendation, it cannot be said that, for sufficient and good reasons, he cannot revise his decision. We, are, therefore, of opinion that the General Manager did not act in excess of his power in cancelling this selection.

10. Here, we may observe that the petitioner is also estopped from challenging the cancellation of the first selection, because, after cancellation of the above selection, he appeared in the second selection held on 28th December 1957. On 16th January 1958, he sent a representation to the General Manager complaining‑ (1) that he was examined only in one paper; and (2) that one Matiur Rahman was not eligible to appear in the examination. On 27th February 1958, he was informed that he had not been selected by the Board. On 28th February 1958, an order was pass ed reverting him to his original and substantive post. On 15th March 1958, he sent another representation against the order of reversion. There he pointed out certain irregularities in the second test. He also contended that he had been properly selected in first selection. On 26th April 1958, he appealed against the order of the General Manager declaring the first selection null and void. In the said appeal he also criticised the methods adopted in the second selection test. From the above, it is clear that only after his failure in the second test he raised the question of validity of tile order by the General Manager declaring the first selection bad. Mr. Khondkar's suggestion that the petitioner sat in the second test under protest, being not supported by any material, cannot be accepted. Mr. Chowdhury, the learned Advocate for respondent, has, therefore, rightly contended that the petitioner is now estopp ed from challenging the order cancelling the first selection.

11. For the reasons stated above, we hold that the petitioner has not made out a good case for cancellation of the order, dated 23rd November 1957.

12. The next question is : Whether the order, dated 27th February 1958, reverting the petitioner to his original and substan tive post was bad 7 Mr. Khondkar has argued that the petitioner was working as officiating A. J. S., and it was the duty of the General Manager to give an opportunity to him to show cause why he should not be reverted. Mr. Khondkar has referred to certain decisions in which it is held that if a person officiating in a higher post is reverted to his original post by way of penalty it amounts to a reduction in rank. We are in agreement with the general proposition enunciated by the learned Advocate. Certainly, the principles of natural justice require that a man shall not be removed from office or otherwise dealt with to his material disadvantage without fair, adequate and sufficient notice given to him of what is alleged to his detriment, and without granting him an opportunity to meet the accusation levelled against him. Article 181 of the late Constitution also gives such a right. But there will be no condemnation if the reversion from the officiating to the original and substantive post is effected purely on administrative grounds or when it comes in a normal course. In this case the petitioner was reverted, because he failed in the selection test. It is thus clear that his reversion was not due to any supposed fault or by way of penalty or mani festation of disfavour. In this connection, reference may also be made to the following note appearing in paragraph 1702 of Pakistan Railway Establishment Code, Volume I "Note (3).‑Non‑selection to a selection post, because of , an unsatisfactory record and unfavourable confidential reports does not amount to the withholding of promotion. If, however, a Railway servant is declared beforehand, as a disciplinary measure, to be ineligible for selection irrespective of the merits of the other Railway servants available, it will amount to the infliction of the penalty of withholding promotion."

13. In these circumstances, we hold that no question of reduction in rank arises, in this case, and hence Article 181 of the late Constitution has no application here. We are, therefore, of opinion, that the petitioner was not entitled to get a notice to show cause against the order of reversion, dated 27th February 1958.

14. We accordingly dismiss this petition and discharge the Rule.

15. Having regard to the facts and circumstances of the case, we make no order as to the costs of this application. KHAN, J.‑I agree. K. B. A. Petition dismissed.