P L D 1968 Lahore 1194 (PLP)

MUHAMMAD FAZLE GHANI KHAN, J.‑

By this order we will dispose of Letters Patent Appeals Nos. 336 and 337 of 1961 filed against the order of a learned Single Judge dated 22nd of May 1961 by which he disposed of Regular Second Appeals Nos. 104 and 105 of 1958 filed by the West Pakistan Province against Syed Shabir Jan and Syed Shahnshah Hussain against the judgment and decree of Senior Civil Judge, Rawalpindi, with enhanced appellate powers dated 15th of November 1957. The facts giving rise to the present appeal on behalf of the West Pakistan Government are the following :‑

2. Respondents Syed Shabir Jan and Shahnshah Hussain joined the office of the Deputy Commissioner, Rawlapindi, as clerk junior grade. Shabir Jan was promoted as Provisional Permanent senior grade clerk by the Deputy Commissioner, Rawalpindi, on 3rd of November 1949 and subsequently became substantive permanent senior grade by order of Deputy Commissioner dated the 3rd of February 1951. Syed Shahnsbah Hussain was promoted as substantive Permanent senior grade clerk by the Deputy Commissioner, Rawalpindi on the 15th of April 1948.

3. Against these two promotions certain junior clerks of office of Deputy Commissioner, Rawalpindi, filed an appeal before the Commissioner, Rawalpindi. These appeals were accepted by the Commissioner and the case was remanded to the Deputy Commissioner for reconsideration. After remand the Deputy Commissioner once again maintained his earlier order. However, on appeal to the Commissioner the orders of promotion of the respondent‑plaintiffs were set aside on 29th of June 1955. The Commissioner directed the Deputy Commissioner to consider afresh the claim of the parties and pass order on merits. The final order of the Commissioner dated 29th of June 1955 gave rise to two civil suits on behalf of Syed Shabir Jan and Shahnshah Hussain and the present Letters Patent Appeals have arisen out of the judgment in those civil suits.

4. On the pleadings of the parties the trial Court framed the following issues :‑ (1) Has not civil Court the jurisdiction to hear this suit ? (2) Is the plaintiff barred by his conduct from bringing this suit ? (3) Is the order of the Commissioner, Rawalpindi dated 29‑6‑55 illegal, void, inoperative and ineffective ? (4) Is the plaintiff entitled to get the permanent injunction ? (5) Relief. The findings of the trial Court on issues Nos. 1 and 2 were against the appellants. Issue No. 3 which related to the merits of the case was also decided in favour of the plaintiff‑respondent. Consequently the trial Court decreed the plaintiff's suit and granted them a declaration to the effect that the order of the Commissioner, Rawalpindi, dated the 29th of June 1955, was illegal, ultra vices, inoperative and did not affect the rights of the plaintiffs. A permanent injunction was also issued against the appellant restraining it from giving effect to the said order of the Commissioner. On appeal by the Province the learned Senior Civil Judge with enhanced appellate powers affirmed the find ing of the trial Court on issues Nos. 3 and 4 and since no argu ments were pressed into service before him on the ground of jurisdiction and estoppel, therefore, first appellate Court confined its decision on issues Nos, 3 and 4 only.

4. In second appeal before the learned Single Judge the findings of the Courts below were challenged on the question of jurisdiction of the civil Court as well as estoppel by conduct On the part of the plaintiffs. These two objections were also heard and disposed of by the learned Single Judge in spite of the preliminary objection raised by the respondents and after an elaborate discussion of the law and the service rules relating to employees of the office of the Deputy Commissioner, the learned Single Judge came to the conclusion that the order of Commissioner was illegal and inoperative and, therefore, he dismissed both the appeals of the Government.

5. The trial Court as well as the appellate Court came to the conclusion that the posts to which the respondents were promoted were selection posts and if by their promotion the seniority of some of the clerks was affected they had no right of appeal to the Commissioner within the meaning of rule 3.6 of the District Office Manual. This interpretation of rule 3.6 was supported by certain decided cases of the Financial Commissioner of the former Punjab in which it was held that refusal to appoint a person to a selection post did not amount to refusal of promotion and no appeal was competent there from. In this view of the matter, both the Courts below concluded that the junior clerks, who had appealed to the Commissioner against the order of the Deputy Commissioner promoting the respondents to their present posts, were refused appointment to a selection post and, as such an appeal against the said order was not competent before the Commissioner.

6. In second appeal before this Court, it was urged that rule 3.6 of the District Office Manual, 1942 Edition, was no rule in the eye of law, and was only in the nature of departmental instruc tions. The learned Single Judge repelled this contention with the observations that the word "practically" in the rule shows that this rule was in the nature of reproduction of the relevant classifica tion rules which were statutory rules under section 241 of the Government of India Act of 1935. The interpretation given to rule 3.6 by the two Courts below found support, in the view of of the learned Single Judge, from rule 12 of Punjab District Subordinate Rules, 1942, as incorporated in Appendix 3, Chapter 3 of the District Office Manual Punjab (Third Edition), 1960 which reads "

12. All posts in the Service are selection posts and no member of the Service shall be deemed to have had promotion withheld by reason of his not having b.‑en selected or transferred to fill such a post, except in the case of an appointment having been made in direct contravention of these rules" It was further held that under Rule 21 of the Punjab Subordinate Services of District Establishment the members of this service were governed in matters of penalty and appeal by the Punjab Civil Service (Punishment and Appeal) Rules and according to rule 14.14 of the said rules, right of appeal existed only in those cases where a superior authority other than the Governor had imposed on the member of the service any of the penalties as specified in rule 14.10. Since the case of the junior grade clerks was not one in which a right of appeal may be deemed to have accrued in their favour within the meaning of rule 14.10, the orders of the Commissioner on the appeal of the junior grade clerks were not within the scope of his jurisdiction.

7. Learned counsel for the respondent raised a preliminary objection before us that the present appeal on behalf of the Government was not competent within the meaning of rule 17.3 of Punjab Law Department Manual 38, as no suit on behalf of the Government or a public officer could be instituted without the previous sanction of the proper controlling authority. In this connection our attention was drawn to rule 15.1 (A) which defines the Controlling Authority meaning "an officer empowered to authorise the institution of a suit on behalf of the Crown" and it was urged that in this case no particular officer was authorised by the Government to file the present appeal, therefore, the appeal was not maintainable. Learned counsel for the appellant has, however, shown us in Court a letter of authorization issued by the Government to the Advocate‑General for the institution of the Letters Patent Appeal before this Court. In view of this letter of authorization, the Preliminary Objection of the respon dents stands duly repelled.

8. The point of law which falls for determination in these two appeals is whether the appeal of the junior clerk before the Commissioner against the order of the Deputy Commissioner appointing the respondent to selection posts in his office was competent under the law or the rules framed thereunder for the hearing of appeal in these service matters. As already stated above, both the Courts below as well as the learned Single Judge on the construction of the relevant rules of service have come to the conclusion that the promotion of the respondents was to a selection post and, as such, no body had a vested right to challenge such a promotion, therefore, there was no right of appeal in the junior grade clerks to challenge this promotion in appeal before the Commissioner. Learned counsel for the appellant was not able to satisfy us by any plausible arguments that the interpretation given by the learned Single Judge to the Rules of Service was in any way erroneous. His simple argument was that as the Deputy Commissioner was under the Administra tive control of the Commissioner, therefore, all the Orders of the Deputy Commissioner were appealable to the Commissioner in routine, and if this interpretation was not accepted the aggrieved party will be left with no remedy to seek a redress. After hearing the learned counsel for the appellant we are satisfied that no case has been made out for our interference with the order of our learned brother in this case. An appeal is a statutory remedy provided by law or the rules made there under and in the absence of any express provision no power of appeal can be deemed to inherent in the Commissioner against every order of the Deputy Commissioner. On examination of various pro visions of the District Office Manual Punjab (Third Edition), 1960, we find that under rule 1.1, the Deputy Commissioner, as a Collector and Magistrate of the District, is responsible for the efficient working of all offices and Courts under his charge and the only administrative requirement is that the Commissioner when visiting Districts in their divisions, should satisfy themselves that the Deputy Commissioner has inspected the Courts and offices in his charge during the previous year, and should consider any points of special difficulty which may arise from those inspections. The sufficiency of such inspections should briefly be noticed by Commissioners at the time of forwarding the annual reports on Land Revenue, etc. Reading rules 1 and 2 together, it becomes clear to us that the Commissioner of a division does not possess any right of interference with the working of the offices of the Deputy Commissioner and it is the sole responsibility of the Deputy Commissioner to see that his offices are properly and efficiently maintained.

9. In the preface of the Manual, it is stated that the Manual reproduces the Punjab Subordinate Services Punishment and Appeal Rules and the Classification Rules of the services concerned with a few connected rules and no attempt has been made to reproduce orders etc. relating to the Government Servants. It is, therefore, clear that Chapter 3 of the Manual which deals with the Subordinate Services under the control of the Financial Commissioner does not merely contain departmental instructions but embodies the relevant rules of services as made, from time to time by the appropriate authority. We are in agreement with the Single Judge that Rule 3.6 is a reproduction of the relevant classification and service appeal rules relating to the Subordinate Services.

10. The District Office Manual Punjab (Third Edition), Rule 3.1 defines the various services which are dealt with in Chapter

3. According to this rule, we find that the type of services contemplated under the control of the Financial Commis sioners are (a) The Financial Commissioners' (Punjab) Subordi nate Service. (b) The Director of Land Records Office, Punjab Subordinate Service. (c) The Punjab Commissioners' Subordi nate Service. (d) The Punjab District Subordinate Service and other services under them. Taking into consideration this categorisation of subordinate services in four District Cadres and reading them with the provisions of Rule 3.6 of the Manual, which lays down that all appointments are regarded as selection posts and no appeal lies against such appointment it becomes clear beyond any shadow of doubt that the Deputy Commissioner is charged with a heavy responsibility to maintain a proper balance between the various communities in the District establish ment and the only authority given to the Commissioner is that while on tour, he should pay attention to this matter in their inspection of Deputy Commissioner's officers, and report confidentially for the information of the Financial Commissioners any cases in which they consider that appointments and promo tions are not being made wisely. Besides this the Commissioner has no such power as to sit in judgment upon the orders of Deputy Commissioner and pass his own orders in appeal. However the persons affected by such an unusual promotion have been provided right of representation under rule 3.9 to bring their grievances to the notice of the Financial Commissioner through proper channel. Neither from the provisions of various instructions contained under the District Office Manual nor from the rules relating to the Punjab Service Rules of District Establishment or any other rules, the learned counsel for the appellant was in a position to point out any specific provision from which a right of appeal could be inferred or spelt out in favour of an aggrieved party when his claim was ignored by the Deputy Commissioner and certain juniors to him were promoted to the selection posts. We are, therefore, in respectful agreement with our learned brother that there was no right of appeal in the junior grade clerks to go to the Commissioner in appeal and, as such, his order, dated the 29th of June 1965, reversing the order of the Deputy Commissioner about the promotion of respondent, was without jurisdiction.

11. The Punjab Civil Service Punishment and Appeal Rules, issued by the Punjab Government under clause 'B' of Sub clause 2 of section 241 of the Government of India Act of 1935, provide a right of appeal to every person against the specified orders to such superior authority as may be prescribed by the Government. This right has been given in case of those orders alone which have been enumerated in Rule 7 and which does not provide any right of appeal when a person is superseded and is ignored as against his junior who is granted a selection post.

12. There are various grades of posts in the office of the Deputy Commissioner from junior clerks to the post of the senior superintendents. All these posts have been prescribed as selection posts, as defined in Chapter 3.14 of the District Office Manual. The combined effect of various rules in this Manual read with the Punjab Civil Service Classification and Control Appeal Rules is that the persons affected on the promotion of another person from one post to another selection post are not under the law given the status of an aggrieved person. They can, therefore, only make a representation to Financial Commis sioner and as such, there is no right of appeal to the Commissioner.

13. The Supreme Court of Pakistan has considered the effect of administrative instructions in a number of cases, namely, Pakistan v. Abdul Hamid (PLD1961SC105), Province of West Pakistan v. Din Muhammad (PLD1964SC21) and Muhammad Nasim Ahmad v. Azra Feroze Bakhi (P L D 1969 S C 37), and it has been held that the administrative instructions contained in the memorandum issued by the authority competent to alter and amend rules can be as effective and bind ing as statutory rules. In the case of Muhammad Nasim Ahmad it has been held that rules governing conditions of service of person employed, made by competent authority and having all characteristics of statutory rules, were as effective as any other statutory, provision on the subject. In view of this authorita tive pronouncement of their Lordships of the Supreme Court even if we were to hold that rule 3.6 of the District Office Manual was not a rule of service made by a competent authority but only a departmental instruction, nevertheless, it will be deemed to have obtained the force of a rule because it has remained in force for a considerable long time and has by its own existence obtained the position of a rule of administrative department The Commissioner could only make a confidential report against the Deputy Commissioner in case he was satisfied that the Deputy Commissioner has made some unwise promotion but he has no jurisdiction to entertain an appeal against an order by which the Deputy Commissioner promotes one of the members of hi 1s establishment to a selection grade.

14. Under Punjab District Subordinate Service Rules made by the Government in exercise of its powers under sub sections (1)(b) and (2)(b) of section 241 of the Government of India Act of 1935 the Commissioner is the competent authority to make appointment to the post of Superintendent and Head Vernacular Clerk etc. as mentioned in rule 3 (a). For all other posts the Deputy Commissioner concerned is the competent authority. Both the respondents were promoted to selection post of senior grade by the Deputy Commissioner and this order of appointment was fully within his competence under sub‑rule (b), rule 3, and there is no specific provision for providing an appeal against sue E promotions. The appeal of junior clerks against the order of the Deputy Commissioner was, therefore, not maintainable and the Commissioner has no jurisdiction to adjudicate upon it.

15. Lastly, it was urged that no decree for the grant of a permanent injunction should have been made against the Government and if at all the plaintiff's suit was decreed only a declaratory decree should have been granted to the respondent when the order of the Commissioner dated 29th of June 1955, was illegal and without jurisdiction. There seems to be some force in the argu ments of the learned counsel for the appellant. Vile are of the view that it is sufficient for the purposes of the suits if the relief in the decree is confined to the declaration that the order of the Commissioner is without jurisdiction and as such is illegal and this declaration would be quite sufficient to give full relief to the respondents to meet the ends of justice because once the act of an officer or authority is declared to be illegal or ultra vires no injunction will be granted to restrain the Provincial Government from enforcing the ultra vires provisions as there can be no reasonable doubt that the Provincial Government will honour the decree of a Court of law. We will, therefore, modify the decree of the lower Courts to this extent that the order of the Commis sioner, Rawalpindi, dated the 29th of June 1955 is without jurisdiction, inoperative and does not affect the present capacity of the appellant. The prayer for the grant of injunction is refused.

16. As a result of the above discussion and subject to the above remarks the order of the learned Single Judge is maintained and both the appeals are hereby dismissed with costs. A.E. Appeals dismissed.