1969 PLP 244 (SCMR)

(On appeal from the judgment and order of the High Court of West Pakistan, Karachi Bench, Karachi, dated the 21st August 1968, in L. P. A. No. 4 of 1967). --Art. 181‑Reversion from officiating rank to substantive post‑Does not constitute reduction in rank. Province of West Pakistan v. Muhammad Sajjad Ali Mazumdar P L D 1962 S C 71 ref. MUHAMMAD YAQUB ALI, J.‑The petitioner was on 29‑8‑1960 reverted by the Director of Agriculture from the post of Assistant Plant Protection Officer against which he was temporarily officiat ing since 2‑4‑1955 for reasons of inefficiency. Subsequently he was suspended from the post of Assistant Research Officer and given a charge‑sheet to the effect that he showed lack of control over the use of insecticides failed to control the damage done to the crop of potatoes and tomatoes, and failed to take suit able action against the subordinates for dereliction of duties when the farmers reported to him about the damage done to their crops. The petitioner submitted an explanation denying res ponsibility for the damage done to the crops of the farmers by inefficient use of the insecticides. An inquiry was eventually held by a committee of two officers of the Department who found the petitioner guilty of inefficiency. The Governor of West Pakistan thereupon passed a fresh order on 30‑11‑1960 reverting the petitioner "as a result of departmental inquiry held on the complaint by some members of the Basic Democracy" to his substantive post of Agricultural Assistant. As no fresh show‑cause notice was given to the petitioner against the proposed action on the report of the inquiry committee he felt aggrieved by the second order of revers7on and filed a civil suit resting his claim on Article 181 of the late Constitution of 1956. The trial Court decreed the suit, but on appeal by the Government the District Judge set aside the decree on the view that as the petitioner did not hold the post of Assistant Plant Protection Officer substantively, his reversion did not amount to reduction in rank within Article

181. On a further appeal by the petitioner the High Court has upheld this view and armed the dismissal of his suit from which he seeks special leave to appeal. The learned counsel was unable to meet the dictim in Province of West Pakistan v. Muhammad Sajjad AU Mazumdar (PLD 1962SC71) on which the High Court has relied viz. "Mr. Mazumdar was merely offciating in a `listed post' of District Magistrate, to which he was not entitled as of right, by virtue of his substantive status in the Provincial Civil Service. In reverting him to his substantive position, the Government deprived only of his officiating rank, and to treat such an action as constitution reduction is clearly misconceived The error came before this Court in the case of Pakistan v. Hikmat Hussain P L D 1959 S C 107 where it was clearly held that when a person is reverted from an officiating appointment to his substantive position, there is no question of reduction in rank. The reason is that the officiating position which he holds is of a tentative and conditional nature, depen dent on the exigencies of the public service, as well as the opinion formed by his superior officers as to his capacity for performing the duties of the higher office, in which he is being tried. He does not hold the rank in any vested sense, but only tentatively and subject to a number of contingencies as well as to the opinion of his superiors. His true rank in the sense of a status which belongs to him as of right, is his substantive rank in the service to which he belongs, and if he were reduced below that rank, as a punishment or otherwise, certain legal consequences might arise. But no such consequences arise where the officer is withdrawn from temporary occupation of a position superior to that to which by the rules of his service he is entitled, and, therefore, the action of the Government in respect of Mr. Mazumdar despite the use of expressions indicating reduction in rank, does not in fact amount to such reduction. Such an action could have been taken in consequence of the inquiry, by reason of the conduct, which was brought to light, but it was unnecessary to describe it as a punishment imposed under the law relating to the inquiry. In other words: it was entirely within the unfettered discretion of the Government to terminate the officiating appointment of Mr. Mazumdar and to restore him to his substantive position in the service to which he belongs. Consequently, the action of the Government is not susceptible of control by a writ of mandamus or otherwise howsoever." The above enunciation applies fully to the facts of the present case. Further, as observed by the learned Judge in the High Court even if the second order of reversion was found to suffer from an error, it would not nullify the earlier order of reversion passed on 29‑8‑1960. No just exception can, in the circumstances of the case, be taken to the dismissal of the petitioner's suit. The prayer for leave to appeal is refused and the petition is dismissed. Leave refused.