P L D 1963 (W (PLP)

Syed Mushtaq Hussain for Appellant. Ali Ahmad Fazeel for Respondent. Date of hearing : 20th September, 1962. Salamatullah Khan the petitioner filed Suit No. 129 of 1958 in the Court of S. Moazzam Ali, Sub‑Judge First Class, Karachi, for a declaration that he continued to be an Upper Division Clerk Grade `B' with effect from the 1st of September 1946 and his reduction to Lower Division Clerk is illegal and void. The learned Subordinate Judge came to the conclusion that the petitioner was promoted as `B' grade clerk with effect from the 1 st of May 1948 and gave him a declaration that the order of his reduction as Lower Division Clerk since after that date was illegal, void and ineffective.

2. The Government challenged this order in Civil Appeal No. 135 of 1959 before Mr. Ahsanul Haq Kureshy, the then Additional District Judge, Karachi. The learned Additional District Judge reversed the finding of the trial Court mainly on the ground that the petitioner was appointed as Upper Division Clerk in the office of Military Accounts and as such he was a servant employed in connection with military and defence services and section 240(3) of the Government of India Act, 1935, will not be applicable to his case. The petitioner is aggrieved by the judgment of the Additional District Judge, Karachi, dated the 31st of May 1960 and has challenged it in this revision petition before me.

3. Syed Mushtaq Hussain, the learned counsel for the petitioner, has urged before me. that the Military Accounts service of the Government of Pakistan is not essentially a part of the military establishment but is a civil service solely under the administration of the Ministry of Finance. The learned counsel has referred me to the Office Manual of Military Accounts Department, Part I, which clearly says that the Pakistan Military Accounts Department is solely under the administrative control of the Ministry of :Finance (Military) of the . Government of Pakistan. The learned counsel has further invited my attention to two decisions in the case of Inayat Shah Hashmi v. The Military Accountant‑General (Pakistan) and another (P L D 1960 Lah. 1001) and another decided by the Supreme Court of Pakistan in the case of Pakistan v. A. P. Hassumani (P L D 1962 S C 409). In the first mentioned case a Division Bench of this Court at Lahore was dealing with a case of an Upper Division Clerk in the Military Accounts service and it was conceded on behalf of, the Government in the written statement that the Civil Services Rules applied. It was further admitted in that case that the appointing authority for the Upper Division Clerks was not Controller of Military Accounts but the Military .Accountant‑General. It was therefore held by their Lordships in that case that the order of the Con troller of Military Accounts would be prima facie without legal sanction. In the next case their Lordships of the Supreme Court disposed of the cases of fifteen senior service officers of the Military Accounts Department of the Pakistan Government under the provisions of Article 170 of the late Constitution of Pakistan. There is thus clear indication in these decisions that the Pakistan Military Accounts Depart ment is not essentially a part of a military establishment and therefore it cannot be said that its employees are not governed by the provisions of the Civil Services Rules or the protection afforded to them under the provisions of the late Constitution. The learned first Appellate Court in deciding the appeal against the petitioner relied on the case of Ghairat Hayat v. The Federation of Pakistan (P L D 1960 S C 227). In that case it was found that Ghairat Hayat was on the establishment of the Ordinance Depot, which is essentially a military institution. It will, however, be noticed in the latter part of the judgment that Munir, C. J. has clearly observed that what is to be determined in such cases is whether the employee concerned was a member of the Civil Service or held a civil post under the Crown for the purposes of subsection (3) of section 240 of the Government of India Act and one of the, considerations in arriving at such a conclusion is to find out whether the organization either employs persons on civil posts or borrows the services of members of any Civil Service and that the employee concerned belonged to any such service. I can take judicial notice of the fact that the Military Accounts Service Officers are borrowed from the Ministry of Finance and there is not the slightest doubt in my mind that the employees of this organization cannot be considered to be connected essentially with a military institution. In my view, therefore, the learned first Appellate Court was not justified in accepting the appeal of the respondents on the ground that the petitioner belonged to an essentially military institution. .

4. There is, however, another difficulty in the way of the petitioner. The finding of the learned Subordinate Court is that he was promoted as `B' grade clerk with effect from the 1st of May 1948. This finding is not based on any reliable evidence on the record. The learned Subordinate Court came to this conclusion on the basis of the Auditor‑General's Office Order embodied in the Deputy Controller of Military Accounts Office Order (Exhibit 4). This document . shows that the petitioner was amongst the clerks who had qualified in the examination for promotion to the Upper Division of the Pakistan Military Audit Department held in May 1948. The Auditor‑General under the above‑mentioned order further said that `C' grade clerks of the M. A. D. who had qualified in the Upper Division Exami nation held in May 1948 may be promoted to the `B' grade of the U. S. P. with effect from the 1st of May 1948. The order further stated that these promotions were being notified sepa rately. But the learned Subordinate Judge failed to notice that the entries in column 5 of Exh. 28, which were issued in pursuance of the above‑mentioned order, did not include the name of the petitioner as one of the clerks promoted as `B' grade clerks. The learned Subordinate Judge observed that this was not found necessary in the case of the petitioner as he was already shown as an officiating `B' grade clerk in Exhibit

4. I am not in agreement with the view of the learned Subordinate Court on this point.

5. But at least one fact emerges from the above‑mentioned observation namely that the petitioner was only an officiating `B' grade clerk of the Pakistan Military Audit's Department in May 1948. The petitioner's grievance is that he was reduced without being given a show cause notice from the post of `B' t grade clerk to `C' grade clerk. In my opinion his grievance has no legal basis because a holder of an officiating post can be reverted to his substantive post without issuing a show cause notice. This position clearly emerges from the decision of their Lordships of the Supreme Court in the case of Province of West Pakistan v. Bashir Ahmad (P L D 1959 S C 93). In that case their Lordships held that reversion to one's permanent post from a higher post whereat the reverted servant was officiating for an indefinite period or until further orders while his juniors were officiating similarly were continued in the higher posts, did not amount to reduction in rank within the meaning of section 240 of the Government of India Act, 1935 or its corresponding provision in Article 181 of the .constitution, 1956. Their Lordships further held that reversion to the sub stantive post cannot in terms mean the same as reduction in rank. In view of these clear observations the petitioner cannot claim any protection under section 240 of the Government of India Act and the learned Subordinate Judge was not justified in granting him the declaration that the order of his reduction as Lower Division Clerk since after the 1st of May 1948 was illegal, void and ineffective.

6. On the view that I have taken of the matter, there is no force in this petition. It is accordingly dismissed. In the special circumstances of the case the parties are ordered to bear their own costs. K. B. A. Petition dismissed.