P L D 1961 Dacca 654 (PLP)

MURSHED, J.‑This appeal is directed against the judgment and decree passed by Mr. A. A. L. Kabir, Subordinate Judge, 3rd Court, Dacca, dated the 20th of February 1957, in Title Suit No. 13 of .1956, in, favour of the plaintiff respondent who instituted the said suit for a declaration that an order made by the Engineer‑in‑Chief, G. H. Q., Pakistan, Rawalpindi, relegat ing him to the rank of an Assistant Engineer from the rank of an Executive Engineer was void, inoperative, and also for a declaration that he still held the post of Executive Engineer in the M. E. S.

2. Plaintiff's case may be briefly stated as follows : Plaintiff holds a degree of B. Se , Engineering with distinction in Civil Engineering from the University of Edinburgh. He had worked as District Engineer for over four years uptil the 23rd of October 1948, when he was appointed as Executive Engineer in the Military Engineering Services under the Engineer‑in‑Chief, G. H. Q., Pakistan, Rawalpindi, on the monthly salary of Rs. 520 in the scaly of Rs. 480‑40‑1,

000. The selection, was made through the Federal Public Service Commission. On his appointment, he had to enter into a contract with the Govern ment relating to the terms of his service. Under the terms of his appointment he was required to be on probation for a period of one year from the date of his appointment. Within the said period of probation he was directed to sit for a depart mental examination, and he did. so. He, however, failed to pass in the said examination: Thereafter; the period of proba tion was extended by another year. During the continuance of the extended period of probation, the Engineer‑in‑Chief, by his order No. 8460107/E-1, dated the 22nd of March 1950, "reverted" the plaintiff to the post of Assistant Engineer on an monthly .salary of Rs. 350 in the scale of Rs 250‑275‑30‑

830. Plaintiff accepted the appointment as Assistant Engineer inasmuch as an assurance was given to him that if he passed the departmental examination he would be confirmed in his original post of Executive Engineer with retrospective effect. Plaintiff subse quently passed the departmental examination within the afore said extended period of probation, but he was not given his original post with retrospective effect as promised by the defendants. He made several representations demanding that he should be appointed to his original post. After a good deal of delay his demand was refused. Thereupon, plaintiff served a notice on the defendants under section 80 of the Code of Civil Procedure and instituted the present suit in which he has prayed for : "(a) a declaration that the aforesaid order No. 8450107/E‑1, dated 22nd March 1950, of Engineer‑in‑Chief, Rawalpindi (defendant No. 2) purporting to "revert" the plaintiff is ultra vires, void and inoperative ; (b) a declaration that the plaintiff still holds the post of an Executive Engineer in the same grade he was appointed or alternatively that he is entitled to be reinstated to his original post with retrospective effect ; (c) all costs of the suit against the defendants ; and (d) such further or other relief or reliefs which the plaintiff may be entitled to, under the law and in equity."

3. Both the defendants contested the suit and a single written statement was filed on their behalf. They admit that the plaintiff was appointed as an Executive Engineer in the M.E.S. under the Engineer‑in‑Chief, G. H. Q., Pakistan, Rawalpindi. They have traversed the rest of the averments in the plaint Their case is, that the plaintiff failed .to pass in the departmental examination and his work was considered unsatisfactory. He was, therefore, released from his post as Executive Engineer, and his service was terminated. He was, however, offered an appointment as an Assistant Engineer, which he accepted. The defence case is, that the plaintiff was not reduced in rank, but that his services were legally terminated, and, thereafter, he was offered an appointment as an Assistant Engineer; which he accepted. Furthermore, the defendants have pleaded that the suit is barred by the law of limitation, and that the plaintiff is estopped by waiver and acquiescence to ask for the post of Executive Engineer as a matter of right. '

4. The above, in short, is the substance of the pleadings in the suit.

5. Before the learned Subordinate Judge the following issues were raised "(1) Is the order complained of null and void ? (2) Is the suit barred by estoppel, waiver and acquiescence ? (3) Was there any undue or illegal pressure on the plaintiff to accept the post of Assistant Engineer ? (4) Was there any valid notice under section 80, C. P. C. (5) Is the suit barred by limitation ? (6) Is the suit maintainable ?

6. In the trial of the suit, the plaintiff examined himself and there was no other witness on his behalf, but a number of documents were put into evidence. In his evidence the plaintiff has reiterated his case as set out in the plaint.

7. On behalf of the defendants no witness was examined, but quite a large number of documents were put into evidence.

8. The learned Subordinate Judge came to a finding in favour of the plaintiff on each of the issues raised in the suit, and decreed the suit on the following terms "That the suit be decreed on contest against the defendants with costs to plaintiff. It is hereby declared that the order No. 8460107/E‑I, dated 22nd March 1950, of Engineer‑in‑Chief, Rawalpindi (defendant No. 2) purporting to revert the plaintiff is ultra vires, void, inoperative, and it is further declared that the plaintiff still holds the post of an Executive Engineer in the same grade as he was appointed. The defendant No. 1 is directed to pay up the decretal cost within 3 months from this ' date failing which the case shall be reported to Government for Orders under section 82, C. P. C." In passing the aforesaid decree the learned Subordinate Judge found that the Engineer‑in‑Chief, G. H. Q., Pakistan, Rawalpindi, was incompetent to remove the, plaintiff from his office as Executive Engineer or to reduce him in rank of an Assistant Engineer.‑ He has held that it is only the Government of Pakistan who could remove him from his service or reduce his rank. He has further held that the act of the Engineer‑in‑Chief amounts to reduction in rank from that which was occupied by the plaintiff before such reduction. He has, therefore, held that by virtue of the provisions of section 240 of the Government of India Act, 1935, as adapted in Pakistan and those of Article 181 of the late Constitution of Pakistan the impugned order is ultra vires, void and inoperative.

9. Against the aforesaid judgment and decree passed by the learned Subordinate Judge, the defendant have preferred this appeal.

10. Mr. Jane Alam, Assistant Government Pleader, has appeared for the appellants. He has taken us through the judgement delivered by the learned Subordinate Judge as well as the evidence and other records in this case. He has pressed the following points on behalf of the appellants, and has contended in the first place that the contract entered into between the Governor‑General of Pakistan and the plaintiff makes it clear that both the Governor‑General as well as the Engineer‑in‑Chief, G. H. Q., Pakistan, Rawalpindi, had authority to appoint the plaintiff and to remove him from service. He has referred us to the contract entered into between the parties, namely, Exh. 27, incorporating the aforesaid contract in the plaintiff's Service Book. The contract is in the following terms :‑ "Articles of agreement made this twenty‑seventh day of October one thousand nine hundered and forty‑eight between Mr. Ahmed Paresuddin of M. E. S. of the one part (hereinafter called the employee) and the Governor‑General‑in‑Council (hereinafter called the Government) .of the other part : Whereas the employee has been appointed by (a) E‑in.‑C., G. A. Pakistan, Rawalpindi (hereinafter called the appointing officer, which expression shall, 'where the context so admits, include any officer under whom the employee may hereafter be serving having authority to make the like appointment) as Executive Engineer in the M. E. S. Department on the terms and con ditions hereinafter appearing, now it is hereby mutually covenanted and agreed as follows, that is to say : "(1) The employee shall remain and continue in the service of Government as Executive Engineer, and shall during such service employ himself honestly, efficiently and deligently under the orders of the officers of Government under whom he may be placed, and discharge all duties which are required to be performed by him in his capacity of Executive Engineer, and shall in addition thereto make himself in other respects generally useful, and shall if directed to do so, proceed on field service or to any other station in or out of Pakistan to which he may be ordered, and shall conform to all the rules and regulations of the Department in which he is serving. (2) If the employee shall at any time hereafter become desirous of resigning his situation, he shall give (b) one clear calendar month's previous notice in writing of such desire to the officer under whose orders he is, and the said officer shall submit such notice with his remarks thereon to the officer empowered either to waive the claim to notice and accept the resignation at once or require the employee to continue in service either in full or in part only of the period of notice, as may be considered necessary in the interests of the State : Provided that the employee may not resign his situation when the country is at war or when he is on field service, and a resignation if tendered during such period may be refused. (3) If the employee shall, when not subject to Military Law, commit a breach of the provisions of the preceding clause of this agreement and a claim shall arise or be made by the Government for the damage resulting from such breach, the Government shall be entitled to retain all monies to the extent of the Government's claim which at the date of suck breach subsequently thereto may be or become payable by Government to the employee under this agreement, and to appropriate such monies against such damages (N. B.‑For the purposes of this clause the damages occasioned to the Government by the employee quitting his situation in contra vention of clause 2 of this agreement shall in the case of an employee other than a permanent non‑pensionable employee of the Military Engineering Services be taken to be a sum equal to one month's pay or salary at the rate then receivable by the employee. In the case of a permanent non‑pensionable employee of the Military Engineering Services, the damage occasioned to Government shall be forfeiture of the whole of the Government contribution to his Provident Fund and interest thereon). (4) If the employee shall, when serving under conditions which render him subject to Military Law, commit a breach of the provisions of clause 2 of this agreement he may be dealt with in accordance with the provisions of such law. (5) If the Government ox the appointing officer shall at any time become desirous of dispensing with the services of the employee the Government or the appointing officer shall, subject to the provisions of clause 6 of this agreement, give the employee (b) one calender month's notice in writing of such desire, and to default of such notice, the employee shall be entitled to receive (b) one month's pay or salary the receiv able by the employee. (a) Insert designation of officer empowered to make appoint ment. (b) Insert‑ "One", if a temporary employee or a probationer in a permanent establishment. "Six", if a permanent non‑pensionable employee of the Military Engineering Services. (6) The Government or the appointing officer, may, at any time without notice, dispense with the services of the employee for gross misconduct, of which misconduct, the officer dispensing with the service of the employee shall be the sole judge, and thereupon the service of the employee shall be terminated. (7) The Government shall subject to the rules and regula tions of the Department concerned pay to the employee so long as he shall remain in the service of Government the salary of the post to which for the time being he may belong in such Department, such salary to be paid monthly and every month, and to cease on the day of his quitting the said service or on the day of his discharge, and if he shall ,die while in such service then such salary shall cease upon the day of his death. (8) The employee shall undertake to occupy Government quarters on payment of rent wherever such quarters are provided by Government. When Government quarters are allotted, the amount of rent chargeable will be 10 per cent. of the employee's emoluments. or the assessed rent of the quarters whichever is less, irrespective of whether the quarters are occupied by the person to whom they are allotted or not. The rent does not include conservancy, water and electric charges." Learned Assistant Government Pleader has, therefore, argued that according to the aforesaid contract the Engineer‑in‑Chief G. H. Q., Pakistan, Rawalpindi, had authority to remove the plaintiff from service. On a construction of the aforesaid contract, we hold that this contention of the learned Advocate for the appellants must be upheld, and, in fact, Mr. M. H. Khondkar, who has appeared on behalf of the plaintiff‑respondent, did not dispute this point.

11. Mr. Jane Alam has next argued that section 240 of the Government of India Act, as adapted in Pakistan and Article 181 of the late Constitution of Pakistan have no manner of applica tion to the facts of the present case. He has contended that the service of the plaintiff is governed by the terms of the contract set out above. According to him, the plaintiff was removed from service and was offered an option to accept a re‑appointment as Assistant Engineer. This was done purely as a matter of grace so that the plaintiff might not be thrown out of employment. Plaintiff accepted the same though with a condition that he should be given the same pay as he was getting as Executive Engineer. The Engineer‑in‑Chief thereupon offered him the pay of Rs. 350 in the scale of pay applicable to the post of Assistant Engineer. Plaintiff continued to hold service as Assistant Engineer in the scale of pay appertaining to that post, and was subsequently con firmed in the said post. Thus, according to the learned Advocate for the defendants‑appellants, plaintiff accepted a re‑appointment as Assistant Engineer in the scale of pay mentioned above, which means a fresh appointment in the aforesaid scale of pay of Assistant Engineer. Mr. Jane Alam has, therefore, submitted that this is not a case of reduction in rank within the meaning of either section 240 of the Government of India Act, 1935, as adapted in Pakistan, or Article 181 of the late Constitution of Pakistan. It is a simple case of termination of service and re‑appointment on fresh agreement.

12. Mr. M. H. Khondkar, who has appeared for the plaintiff -respondent before us, has argued that this appear resolves itself into a very simple question, namely, whether the impugned order passed by the Engineer‑in‑Chief, G. H. Q., Pakistan, Rawalpindi, in the context of the facts and circumstances which preceded and followed the same, the said order would be construed as termination of the service of the plaintiff as Executive Engineer and a fresh appointment as Assistant Engineer, or, whether it would amount to reduction in rank from that which the plaintiff held as Executive Engineer to which post ho had been directly appoint ed. Mr. Khondkar has argued that the order passed by the Engineer‑in‑Chief amounted to a reduction in rank of the plaintiff so as to attract the provisions of section 240 of the Government of India Act, 1935, as adapted in Pakistan, and those of Article 181 of the late Constitution of Pakistan.

13. Our attention was drawn by the learned Advocates appear ing before us to a communication which was officially marked Exh. G. in this case. This is letter No. 8460107/E‑1, dated the 24th of January 1950, from the Engineer‑in‑Chief, G. H. Q., Pakistan, Rawalpindi, to C. M. E. S., East Pakistan, Dacca, with copy to plaintiff. The letter reads as follows : "Ref : Your No. S/1/19, dated 10th November 1949. "In view of the fact that Mr. Ahmad Paresuddin XEN‑B/R did not qualify in the M. E. S‑ Procedure Examination the Engineer‑in‑Chief does not consider him fit for retention in XEN's. appointment. I am, therefore, directed to say that this officer will be released from his present appointment and re‑employed as an Assistant Engineer. Please inform the officer and say whether this is acceptable to him. "He can however, resign if he is not willing to accept an A. E's. appointment. The officer was told by the Engineer‑in- Chief personally on his last visit to Dacca that he would have to revert to A. E. and that his case would be considered when he has qualified." Copy of the above letter was communicated to the plaintiff on the 2nd of February 1950; as is evident from Exh.

4. The forwarding note reads as follows : "Confidential No. C/106/18. Office of the C. M. E. S., E. P., Dacca, dated 2nd February 50. "To Mr. Ahmed Paresuddin, XEN B/ R. C/o. C. E. Dacca. "Sub : As above. "Forwarded for information and report. "(Sd.) SIRAJUDDIN, A. E., Admn, for Commander, M. E. S., East Pakistan, Dacca. (A. A. Khan) TEL CIV 752." Soon after the aforesaid communication plaintiff addressed the following petition of appeal to the, Engineer‑in‑Chief, Exh. B, which reads as follows : "Ref: Your No. 8460107/E‑1 of 24‑1‑

50. Sir, "I beg to lay down the following facts for your kind perusal and consideration. "(i) I was appointed after an interview through the Public Service Commission as Executive Engineer. (No. 1579/E‑1 part file, 20‑9‑49). "(2) According to the 3rd para. of the appointment letter a copy of which is sent herewith, `I was to serve a probationary period of one year'. Unlike in your other appointment letters which were issued at later dates there was no mention of appear ing at any departmental examination or of the consequence if I failed to qualify in the examination. "I am mentioning here the fact that I remained entirely unguarded for the examination, and of .the consequences that might happen later on, if I cannot qualify. "(3) Immediately after my appointment, I was posted in Chittagong as Additional G. E. The Division was newly creat ed. I had to exert all my attention and time in organising the office, staff, arranging stores and other things lying there, besides executing various works for Army, Navy and Air Forces. Due to those pressures from the very beginning, I had little time or thoughts for preparing for the examination. "(4) Even then I could have prepared myself at least to qualify in the examination had I been informed or given any hints before‑hand what would be the consequences if I failed to qualify. But as I was not given such opportunity, I took the examination lightly. Instead of avoiding to appear at the examination, which I could have easily done. I faced it, though I was not prepared, thinking if I qualify it is well and good, if not, I will surely be given another chance as is the system in other Government Departments. "That a person may be demoted to lower ranks or even relieved of his appointment after a year of service simply because he could not pass in the qualifying or departmental examina tion, at the very first instance, an examination, the importance of which he was not at all informed, was beyond my compre hension. Had I the slightest idea I would have been the first man to come out successful. "(5) I have already been sufficiently punished. I am not getting my increment. I have been given to understand that if I cannot qualify in the next examination I will be out of employ ment, I have been transferred from the post of D. C., M. E. S., as an attached Officer to G. E. Officer, Dacca, which is nothing but a kind of demotion. "(6) I have been holding posts equivalent to that of Executive Engineer for the last six years. I have been drawing a salary of Rs. 500 or more per month for the last five years. I am a graduate of the Edinburgh University with distinction in Civil Engineering. I have executed many responsible and important works. Wherever I have served, I have achieved reputation and credit. I am, fully confident of my own abilities. Since my appointment in the M. E. S., I have not been given proper opportunity to show my worth. As Additional G. E., Chittagong, I was allowed no power. The Division was just created. The staff were mostly inexperienced, contractors were all new in their line, materials, transports were not available. Under these circumstances, I only did whatever was humanly possible, and I think, I did well. But if you feel after proper scrutiny of my works that I have done anything wrong or some other XEN of the M. E. S. under similar circumstances could have done better, I will gladly resign my post. But to resign or to be demoted to a lower rank for a reason which could have been easily avoided had I been given the slightest hints of the after consequences. I feel that some injustice is being done. "(7) I, therefore, lay my case before you, and considering the position and posts I have been holding, qualifications I possess and factors under which I have been led to appear in the examination, I hope you would consider favourably, and allow me to retain my XEN appointment. "Lastly, I beg to state that I am recruited in the M. E. S. Services from outside. I am a new‑comer to this Department. It is all the more reasonable that I may expect sympathy, guidance and little leniency from E‑in‑C, as to any mistake committed for the first time. Under these circumstances lay my case before you for your kind perusal and re‑consideration. I have the honour to be, Sir, Your most obedient servant, Dated, A. P. UDDIN, The 7th February 1950 (Ahmed Paresuddin) XEN, B/R C/o. C. M. E. S. Office, Dacca" Plaintiff, however, accepted the offer of appointment as Assistant Engineer by a letter, dated the 2nd of March 1950, which is marked Exh. H, which reads as follows "C. M. E. S. "Ref. G. H. Q. Letter No. 13750/E‑I. "I beg to say that I accept A.E's appointment on the present pay I am getting. A. P. UDDIN. 2‑3‑1950." The offer was accepted with a condition. In the meantime, there was another official communication, a copy of which was forwarded to the plaintiff. This communication is marked Exh. C, dated the 20th of March 1950, and it reads as follows "No. 1627/E‑1, Engineer‑in‑Chief's Branch, General Headquarters, Rawalpindi, 20th March 1950, C. M. E. S, Karachi, Malir Cantt. Subject.‑Confirmation of officers on completion of probationary period: "Reference.‑Your No. 1079/27/E‑1, dated 2nd March 1950. It is confirmed that the officers whose probationary period is extended to enable them to take the M. E. S. procedure examination, be confirmed with retrospective effect from the date of completion of their original probationary period of one/two years. (G. Farid Khan) Lt. Col. for Engineer‑in‑Chief Tel. 348 /N."

14. A copy of the above letter, Exh. C, was forwarded to the plaintiff, and the forwarding note `is marked Exh.

3. The relevant order by which the plaintiff was appointed an Assistant Engineer was entered into the Draft Casualty Return in respect of the plaintiff, and the relevant entry is marked Exth. 5, which reads as follows "Reverted to A. E., B/R., Ty., w.e.f. 22‑3‑50 and pay fixed at Rs. 350 in the scale of Rs. 250/275‑350‑30‑830. "Authority : E‑in‑C. G. H. Q., Pak. No. 8460107/E‑1, dated 22‑3‑50 received under C.M. E.S., E/P; Dacca. "No. 911008/77/E.‑1, dated 31‑3‑

50. Illegible, XEN., 8/4, G. E. Dacca Div."

15. We have also been taken through a number of other correspondence between the plaintiff and the defendants. For the purpose of a decision of the point pressed before us, it is not necessary for us to set out here all of them or discuss the other correspondence appearing in the judgment passed by the learned Subordinate Judge. We may, however, set out another entry in the Service Book of the plaintiff which records the extension of the period of probation of the plaintiff by another year. This has been marked as Exh. 27, of which entry No. 6 reads as follows : "6 (i) Failed in M.E.S. Routine and Procedure Examination held during September 1946. "(ii) Probationary period extended for a further period of one year w.e.f. 23‑10‑49. "Authority : E‑in‑C., G.H.Q., Pakistan, Rawalpindi, No. 1627/E‑1, of 20‑1‑50 and C.M.E.S., E.P., Dacca, C.R. No. 27, dated 6‑2‑50."

16. Mr. Khondkar has argued, in the first place, that in the contract of service, which has been set out above, there is no stipulation to the effect that the plaintiff ,had to appear in any departmental examination. This point may, however, be disposed of by saying that according to the first clause in the aforesaid contract the plaintiff agreed to abide by the rules and regulations of the Department. It has not been disputed that sitting for the departmental examination is part of the rules and regulations of the Department in which the plaintiff was serving. Therefore, there is no substance in the point that the plaintiff was not required to sit for any departmental examination according to the terms of the contract of service of the plaintiff.

17. It will appear from the evidence in this case that within one year from the date of appointment of the plaintiff, i.e., the 23rd of October 1948, plaintiff appeared, in a departmental exa mination and failed to pass in the same. The period of probation was, however, extended by another year on the 20th of January 1950, with effect from the 23rd of October 1949. In these cir cumstances, Mr. Khondkar is right in contending that the order terminating the service of the plaintiff or reducing him in rank was passed during the currency of the extended period of probation.

18. The question now is, whether the employment of the plaintiff as Executive Engineer could be terminated under the contract governing him, and also, whether, in fact; his service as Executive Engineer was terminated.

19. We have already seen that the learned Advocate for the defendants‑appellants has contended that the service of the plaintiff was terminated, and that the plaintiff was re‑appointed as Assistant Engineer on a fresh offer and acceptance of the same by the plaintiff. On the other hand, learned Advocate for the plaintiff‑respondent has contended that the order passed by the Engineer‑in‑Chief amounted to "reverting" the plaintiff to the post of Assistant Engineer, and this means reduction in rank within the meaning of section 240 of the Government of India Act, 1935, as adapted in Pakistan and Article 181 of the late Constitution of Pakistan. The grievance of the plaintiff is, that he was punished with reduction in rank without being given any opportunity of being heard in his defence.

20. In order to decide this point, it is necessary to discuss and analyse Exh. G, the official communication to the plaintiff, along with, Exh. H, and Exh. 2, casualty return entered in the Service Book as item 6, have been set out above. It would be evident that the operative portion of the said communication. Exh. G, reads as follows : "In view of the fact that Mr. Ahmed Paresuddin XEN B/R, did not qualify in the M.E.S. Procedure Examination, the Engineer‑in‑Chief does not consider him fit for retention in XEN's appointment. I am, therefore, directed to say that this officer will be released from his present appointment and re employed as an Assistant Engineer. Please inform the officer and say whether this is accepted to him." The communication then continues as follows : "He can, however, resign if he is not willing to accept an A. E's appointment. The officer was told by the Engineer‑in -Chief personally on his last visit to Dacca that he would have to revert to A.E., and that his case would be reconsidered when he has qualified." We have noticed that this communication was officially trans mitted to the plaintiff on the 2nd of February, 1950, by Exh.

4. There can be on manner of doubt that the plaintiff was told in the aforesaid communication that he would be released from his appointment as Executive Engineer. He was also asked to communicate as to whether an appointment as Assistant Engineer was acceptable to him or not. He was further told that he could resign if he was not willing to accept the post of Assistant Engineer. The communication purports to incorpo rate the talk of the Engineer‑in‑Chief, with the plaintiff to the effect that plaintiff "would have to revert" to the post of Assistant Engineer, and that his case would be considered when he passes the departmental examination. Upon receipt of the communication plaintiff addressed a petition of appeal to the Engineer‑in‑Chief, and it seems that his appeal was not granted. But the next important document is Exh. H, dated the 2nd of March 1950. in which plaintiff categorically stated that he accept ed the appointment as Assistant Engineer. He, however, added a condition that his pay would be the same which he was already receiving. It would be seen that he was not offered the appoint ment on his present pay. On the 22nd of March 1950, the Engineer‑in‑Chief passed an order which has been incorporated in the Casualty Return, Exh. 5 which is as follows : "Reverted to A.E., B/R., Ty. w.e.f. 22‑3‑50 and pay fixed at Rs. 350 in the scale of Rs. 250/275‑350‑30‑830."

21. Mr. Khondkar has relied on the word "reverted" used in both the communications. It is patent that, that word is a misnomer. The word "reversion" from an appointment pre‑supposes relegation to an appointment previously held. Admittedly in the present case, plaintiff was directly ap pointed as an Executive Engineer. Prior to that appointment he never held an appointment as Assistant Engineer. In this context there cannot be any question of "reversion." to the post of Assistant Engineer, It is thus clear that the word "reverted" is not an accurate terminology. What is means will be apparent from the entire communication, which was in fact made to the plaintiff, and the subsequent conduct of parties. We have already seen above that the plaintiff was told that he would be released from his appointment as Executive Engineer, and re‑employed as an Assistant Engineer, if .he accepted the offer. By his letter, marked Exh. H, he accepted the offer with the condition that he should get his present pay of the post of Executive Engineer. The order that was passed by the Engineer‑in‑Chief was that he was appointed to the post of Assistant Engineer in the scale of pay attached to that post. We do not have anywhere in the record of this case the exact word used by the Engineer‑in‑Chief, but the entry in the Casualty Return, which we have quoted above, merely reads as follows : "Reverted to A.E., B/R., Ty. w.e.f. 22‑3‑50 and pay fixed at Rs. 350 in the scale of Rs. 250/275‑350‑30‑830." The word "reverted" is an inaccurate expression. We have pointed out that the question of reversion, in the circumstances of the case does not arise. The intention of the parties have, therefore, to be gathered from a construction of Exhs. G. H. and 5.

22. From an examination of the aforesaid exhibits, in the light of the facts and circumstances of the case, it would appear that the Engineer‑in‑Chief terminated the appointment of the plaintiff as Executive Engineer and re‑appointed him in the post of an Assistant Engineer. The impugned order passed by the Engineer‑in‑Chief lit this context really amounts to a termination of plaintiff's service as Executive Engineer and re‑appointment as Assistant Engineer in the scale of pay attached to that 'post. Plaintiff accepted the appointment, and was confirmed in that post. The conduct of the plaintiff plainly indicates that he accepted the re‑appointment as Assistant Engineer in the scale of pay which is attached to that post. We could have held that the word "reverted" meant a demotion or reduction in rank, but for the fact that the appointment of the plaintiff as Assistant Engineer arose out of a fresh contractual relationship between the parties which terminated his previous appointment as Executive Engineer

23. Mr. Khondkar has argued that the Engineer‑in‑Chief could not have terminated the service of the plaintiff as Execu tive Engineer, his period of probation having been extended by another year. The answer to this is provided by the "contract governing the service of the plaintiff. It would appear from clause 5 of the contract that the Government or the appointing officer, i.e., the Engineer‑in‑Chief, could at any time dispense with the service of the plaintiff either by giving him a calendar month's notice, and if the service of the plaintiff was dispensed with without such notice, the plaintiff would be entitled to one month's salary in lieu thereof. In this case the appointing officer terminated the service of the plaintiff and offered him a lesser appointment on a lesser salary, and the plaintiff accepted the said appointment. Exhs. G. H. and 5 as well as the acceptance by plaintiff of the appointment of Assistant Engineer lead one to the following conclusion : The Engineer; in‑Chief dispensed with the service of the plaintiff and offered him a fresh appointment as Assistant Engineer (Exh. G). Plaintiff accepted this with a 'counter offer, namely, that he demanded his salary as Executive Engineer (Exh. H.) The Engineer‑in‑Chief rejected the counter offer, and made a fresh offer of the post of Assistant Engineer in a lesser scale of pay (Exh. 5). Plaintiff joined this post. This amounted to an acceptance of the fresh offer. All other petitions addressed by the plaintiff are mere appeals by him so that his case may be reconsidered.

24. In the light of the aforesaid finding arrived at by us, we hold that the provisions of section 240 of the Government of India Act, 1935, as adapted in Pakistan, and those of Article 181 of the late Constitution of Pakistan are not applicable to this case. We have repeated above that according to the terms of the contract of service, which were agreed upon between the parties, the appointing authority could remove the plaintiff under various circumstances. The appointing officer having terminated the plaintiff's appointment, he could have claimed a month's salary under clause 5 of the said contract if he had not been given a month's notice of such termination. He, however, chose to accept the offer of re‑appointment as Assistant Engineer.

25. Mr. Khondkar has argued that the plaintiff was misled into accepting the post of an Assistant Engineer on a lesser salary, because of the communication made to him to the effect that "officers whose probationary period is extended to enable them to take the M. E. S. Procedure Examination will on passing the said examination be confirmed with retrospective effect from the date of completion of their original probationary period of one/two years". This communication is dated the 20th of March 1950 (Exh. C). Mr. Khondkar has further stressed the fact that, even in the official communication in which he was given the option to resign or to accept an appointment as Assistant Engineer (Exh. G), there are observations to the effect : "The officer was told by the Engineer‑in‑Chief personally on his last visit to Dacca that he would have to revert to A. E, and that his case would be reconsidered when he has qualified." Learned Advocate for the plaintiff‑respondent has submitted that but for those assurances the plaintiff would not have accepted the post of an Assistant Engineer on a smaller scale of pay. It has been strenuously contended before us that the Engineer‑in‑Chief has gone back on his previous promises. There is a good deal of force in these contentions of the learned Advocate for the plaintiff respondent. The only reason for the decision to "release" the plaintiff, as stated in Exh. G was that the plaintiff "did not qualify in M.E.S. Procedure Examination". His probationary period was, however, extended in the meantime. An assurance was given to plaintiff that his case would be considered when he qualified himself in the said examination. Plaintiff did qualify himself in the procedure examination within the extended period of probation: Inspite of this, it appears, the authorities in the Military Engineering Services turned a deaf ear to all the appeals of the plaintiff for a reconsi deration of his case by restoring him to his original appointment. On behalf of the defendants no evidence was led to show that plaintiff was otherwise inefficient or unfit for appointment as Executive Engineer apart from his failure to pass a departmental examination in the first chance. From the evidence in this case, we think that plaintiff has been unfairly treated by the said authorities in the M. E. S. Mr. Khondkar has argued that plaintiff could claim substantial damages in the aforesaid circumstances. We do not give any opinion on this point as it does not arise on the pleadings in this case. Plaintiff has challenged the legality of the order passed by the Engineer‑in‑Chief on the 22nd of March 1950, (vide Exh. 5), purporting to "revert" the plaintiff to the post of an Assistant Engineer. We have already held that, in the particular circumstances of this case, the said order amounts to termination of the service of the plaintiff as Executive Engineer and a re‑appointment as an Assistant Engineer. We have also held that under the contract governing the service of the plaintiff, the Engineer‑in‑Chief was competent to do so.

26. The result, therefore, is that we allow this appeal, set aside the judgment and. decree passed by the learned Sub ordinate Judge, and dismiss the suit.

27. In view of the facts and circumstances of this case, we do not propose to allow the defendants the costs either of this appeal or those of the suit in the trial Court. KHAN, J.‑I agree. K. A. B. Appeal accepted.