P L D 1964 (W (PLP)

ANWARUL HAQ, J.‑This judgment will dispose of Writ Petitions Nos. 338 and 487 of 1961 which raise similar questions of fact and law. The first mentioned petition is by Karam Din, whereas the second one is by Rai Ghulam Muhammad. Both the petitioners were holding the substantive rank of Sub‑Inspector in the Provincial Armed Reserve, and had been officiating as Inspectors for several years in that organisation, when on the 19th of May 1961, they were served with notices intimating that "as a result of the abolition of the P. A. R. and taking into consideration your record and qualifications, you have been declared surplus to the requirements of the Department and permitted to proceed on pension. Your services will, therefore, no longer be required after the 31st of May 1961, from which date you shall proceed on pension". They seek to challenge the validity and legality of these notices mainly on the following grounds :‑ (a) That the action taken against them is mala fide because they were fighting for the protection of the rights of officers and men of the Provincial Armed Reserve who were threatened with retrenchment due to the abolition of the Reserve, and the authorities did not like the part played by them in this behalf. It is alleged that after the abolition of the Provincial Armed Reserve a new section of the police force known as the Striking Force was created by the Provincial Government and eleven posts of Inspectors were sanctioned in the new Cadre and all the other Inspectors except the two petitioners have been absorbed. It may be stated that in the list of officiating Inspectors Karam Din is the senior most, while, Rai Ghulam Muhammad is the junior most, (b) that as it is stated in the notice of retirement that the order is being passed on the basis of the service record and qualifications of the petitioners, therefore, it is clearly in the nature of a penalty and it was necessary to issue a show‑cause notice which has not been done, (c) that the non‑absorption of the petitioners in alternative posts is in violation of solemn assurances and guarantees that were extended by the Government in various communications issued to the personnel of the P. A. R., (d) that as required by Rule 5‑9 of the Civil Services Rules, Volume II, three months' notice was necessary, where as in the present case only twelve days' notice was given, namely, from the 19th of May to the 31st of May 1961; and (e) that the notice of retirement purports to emanate from A. I. G. Police, whereas the appointing authority in the case of the petitioners was the D. I. G.

2. Before we proceed to deal with the several contentions raised on behalf of the petitioners, it maybe stated that the relief prayed for is two‑fold: (i) that respondent No. 1, namely, the Inspector‑General of Police, West Pakistan, be directed to withdraw the impugned notices dated the 19th of May 1961, and (ii) that respondent No. 1 be commanded to post the petitioners against the newly sanctioned posts of equivalent rank in accordance with the undertaking of the Government and the legal rights of the petitioners.

3. The petitions were filed in 1961 before the promulgation of the Constitution of the Republic of Pakistan in June 1962, and, therefore, they are governed by the relevant provisions in the 1956, Constitution. It is for this reason that a writ of mandamus has been prayed for. Mr. Ataullah Sajjad, the learned Additional Advocate -General, appearing for the respondents, has rightly pointed out that in order to succeed the petitioners have to show that they have a legal right to be absorbed against equivalent posts freshly created by the Government as part of the newly constituted Striking Force.

4. As officiating Inspectors the petitioners had no substantive right to any post, but as confirmed Sub‑Inspectors they bad such a right. It is common ground between the parties that in the case of a permanent Government servant the matter is governed by Rule 5'2 of the Civil Services Rules, in case his post is abolished. This rule is to the following effect:‑ "If a Government servant is selected for discharge owing to the abolition of a permanent post, he shall, unless he is appoint ed to another post the conditions of which are deemed by the authority competent to discharge him to be at least equal to those of his own, have the option: (a) of taking any compensation pension or gratuity to which he may be entitled for the service he has already rendered, or (b) of accepting another post or transfer to another establish ment even on a lower pay, if offered, and continuing to count his previous service for pension.

5. It appears to us that Rule 5,2 does not confer any right on a Government servant to absorption in an equivalent or even a lower post. If the Government offers him such a post, then he has the option of either accepting it or taking any compensation, pension or gratuity to which he may be entitled for the service already rendered. It is clear, therefore, that if a Department, or a permanent post held by a particular Government servant, is abolish ed, then the Government servant concerned has no legal right to demand that he must be absorbed in an alternative post. Such being the case, the present petitions are liable to fail on this ground alone.

6. There is the further consideration that, as laid down by their Lordships of the Supreme Court in Pakistan and another v. Naseem Ahmad (PLD 1961 SC 445), "a writ of mandamus does not lie to restore a Government servant to office for, even though he may be holding a public office, his office does not fall within the nature of the offices to which restoration can be compelled by the extraordinary remedy. Even if we bad come to the conclusion that the petitioners had a legal right to be absorbed in alternative jobs, it is by no means certain that we would have been in a position to issue a writ of mandamus to the respondents directing the absorp tion of the petitioners, as such a direction would have run counter to the dictum of the Supreme Court just cited. However, as the case stands, we do not see that the petitioners have any such legal right accruing to them on the abolition of the Provincial Armed Reserve.

7. It was contended by Dr. Naseem Hassan Shah that even if the petitioners had no legal right to by absorbed in alternative posts, the orders made and the action taken by the respondents with regard to the two petitioners were otherwise bad in law and, therefore, liable to be set aside. As already stated, the first ground of attack is that the orders are mala fide. It appears that on the abolition of the Provincial Armed Reserve it was decided to constitute a new section of the police known as the Striking Force, and eleven posts of Inspectors were sanctioned in that Force, and directions were issued that officers and men from the Provincial Armed Reserve were to be absorbed against these newly created posts. It has been explained by the respondents that out of the eleven posts of Inspectors only four were allocated to the former Punjab and Bahawalpur region and, therefore, the question before the authorities was to select four Inspectors out of the nine officiating Inspectors of the Provincial Armed Reserve for absorption against the four new posts. It is added that for this purpose a high‑power ed committee consisting of three senior officers was constituted and this committee, after comparative examination of the record and qualifications of all the nine officers, came to the conclusion that the other Inspectors were better suited for absorption. Out of the nine Inspectors, three were provided elsewhere and four were absorbed against the new posts, thus leaving the present two petitioners un-provided for. The petitioners have strenuously contended that their record and qualifications are better than those of the officers who have been selected for retention against the new posts or who have otherwise been absorbed elsewhere. In particular it is pointed out that one of the absorbed officers, namely Khan Bahadur, was a purely temporary hand and did not hold substantively even the post of a Foot‑Constable, whereas the two petitioners are confirmed Sub‑Inspectors. It is also pointed out that another of the selected officers, namely, Ghulam Abbas, was severely censured on the 26th of October 1956, whereas there is no such stigma attaching to the petitioners. On behalf of the petitioner Karam Din, it is further urged that he was the senior most officer on the list of officiating Inspectors and, therefore, he had a right to be absorbed in preference to his juniors. In other wards the contention is that as the absorption of the surplus officers has not been in keeping with the principle of 'last in first out', it is clear that the petitioners have been left out due to ulterior reasons namely, that the authorities were displeased with them for the part played by them to protect the rights and privileges of the officers and men of the P. A. R. who were threatened with retrenchment.

8. On behalf of the respondents the reply is two‑fold: In the first place, it is stated that there is no service rule laying down that the absorption of surplus personnel in alternative hosts is to be on the basis of seniority alone. Reliance is placed on Province of West Pakistan v. Bashir Ahmad (P L D 1959 S C 93), which was a case of reversion from officiating appointments, and their Lord ships repelled the contention that reversion should start with the junior most officer. They 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 who 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 1956 Constitution." It seems to us that the observations of their Lordships, although made in a slightly different context, apply in the present cage as well, as there is no service rule that in the matter of the abolition of posts and the absorption of the retrenched personnel., the only criterion should be the seniority of the Government servants concerned. The mere fact, therefore, that the rule of seniority is departed from in such a case is not enough to give rise to a presumption of mala fides on the part of the relevant authorities.

9. The other aspect of the case is that although the petitioners have recited their own qualifications, they have not been able to allege anything against the officers who constituted the high powered committee which selected the Inspectors for absorption fn equivalent jobs, In order to prove that a certain functionary has acted in a mala fide manner, it is necessary that concrete facts should be brought out which would show that this is indeed the case. Whatever the record and qualifications of the petitioners, the judgment which must prevail in the present case is that on the relevant authorities, and this Court is not to substitute its own opinion for that judgment. In the absence, therefore, of any concrete allegations against the members of the high‑powered committee set up to select officers for absorption in alternative jobs, we are not prepared to hold that the selection was made in a mala fide manner or that the petitioners were refused such selection for any ulterior motive.

10. The next contention raised on behalf of the petitioners, viz., that as their non‑selection has been stated to be on the basis of their record and qualifications, therefore, it was in the nature of a penalty, has no substance either. Once the Provincial Armed Reserve had been abolished and the petitioners had become surplus, it is clear that the competent authority was within its rights to examine their record and qualifications for determining whether they were fit persons to be offered alternative jobs. The examination of their record and qualifications for that purpose does not mean that their non‑selection would amount to a penalty, A somewhat similar question fell to be decided in Ch. Muhammad Ismail v. The Punjab Province (P L D 1956 Lah. 129). Their Lordships were dealing with a case of compulsory retirement under Rules 5 33 and 5 36 of the Civil Services Rules, Volume II, and they observed that "the order of retirement in such a case does not amount to removal within the meaning of section 277 of the Government of India Act, 1935 or Rule 14 10 of the Civil Services Rules, Vol. I, for which a regular inquiry is necessary in terms of section 240, Government of India Act, 1935," although the dissatisfaction of Government, which is the reason for ordering retirement, may be referable to lack of integrity or want of efficiency or to something else. The same view was reiterated in Malik Muhammad Khalil v. Government of West Pakistan etc. (P L D 1959 Lah. 229). It is clear, therefore that the mere fact that the petitioners were informed that they are being required to proceed on retirement due to their record and qualifications does not mean that the retirement was in the nature of a penalty, as the real reason for their retirement was the abolition of the Provincial Armed Reserve. The authorities cited above would show that even if the Provincial Armed Reserve was not being abolished, the petitioners could have been required to proceed on compulsory retirement on the basis of their record, and even then the retirement would not have been regarded as removal amounting to a penalty.

11. We may now examine the effect of the assurances and guarantees said to have been given to the officers and men of the Provincial Armed Reserve. It is correct that on the 27th of August 1960, a memorandum was issued that "under no circumstances any man of the P. A. R. will be retrenched or thrown on the street. Every one will be absorbed. Officers should see that the men of the P. A. R. posted in their areas should be clearly informed". Again on the 22nd of October 1960, another letter was issued offering absorption in a lower rank and finally, on the 13th of March 1961, a letter was issued regarding the creation of new posts in the Striking Force and declaring that the absorption in the alternative posts will be according to seniority- cum‑merit. But the question is whether these guarantees can be regarded as having vested the petitioners with a legal right of absorption in alternative posts. Dr. Nasim Hassan Shah referred us to certain observations of the Supreme Court in The Province of West Pakistan v. Ch. Nazir Hussain (P L D 1960 S C 130). That, however, was a case resting on the basis of a contract between the Government and the officer concerned, and the observations of their Lordships made in that context have no direct relevance here. On the other hand, Mr. Ataullah Sajjad, the learned Additional Advocate- General, has referred us to Rederiaktiebolaget Amphitrite v. The King (3 K B D 500) in which it was held that a Government's undertaking was not enforceable in a Court of law, it not being within the com petence of the Crown to make a contract which would have the effect of limiting its power of executive action in the future." The learned Additional Advocate‑General contended that on the abolition of a post, the Government had the right to discharge or retiring the holder of that post, and if any guarantees were given in the present case that surplus personnel of the P. A. R. would be absorbed, they were merely intended to help retrenched per sonnel and could not be enforced in a Court of law. The learned counsel for the respondents further pointed out that the substantive right of the petitioners was with regard to their own posts namely, those of Sub‑Inspectors in the P. A. R., and those posts having been abolished, no further legal right remained in the petitioners, and no relief could be given to them by this Court. In support of this last contention Mr. Sajjad referred us to Pakistan v. Khondkar Ali Afzal and another (P L D 1960 SC 1) in which it was held by their Lordships that as the post of Joint Secretary to the National Assembly in which the petitioner in that case wanted to be retain ed for another two years had been abolished before the announcement of the judgment of the High Court, no writ of mandamus could have issued requiring the Government to reinstate the respondent to a post which had been validly abolished.

12. We are of the view that there is force in the submissions made by the learned Additional Advocate‑General. The guarantees or assurances given by the Government from time to time that men of the P. A. R. will be absorbed, cannot be regarded as in the nature of a contract between the Government and the peti tioners. No legal right, therefore, accrued to the petitioners for being absorbed in alternative jobs.

13. The next contention raised on behalf of the petitioners is that under Rule 5‑9 of the Civil Services Rules, Vol. II, they were entitled to a three months' notice, whereas in the present case they were given only twelve days' notice. This position is however, factually not correct as we find that on the 1st of April 1961, a notice was issued under the directions of the Inspector -General of Police informing the two petitioners that they will be required to proceed on retirement due to the abolition of the Provincial Armed Reserve. It is conceded by the learned counsel for the petitioners that the petitioners were allowed to remain in service until the 30th of June 1961, and retired with effect from the 1st of July 1961. It is clear, therefore, that the requirements of Rule 5 9 were complied with.

14. The last contention, namely, that the notice of retirement has been given by an A. I. G. and not by a D. I. G. has not much force in view of the fact that the notice of the 1st of April 1961, was issued under the orders of this Inspector‑General of Police, who was clearly not subordinate to the appointing authority of the petitioners.

15. The result is that we have not been able to discover any illegality in the action taken by the respondents in the matter of retiring the two petitioners. The two petitioners had no legal right to be absorbed in alternative posts and the mere fact that some other Inspectors have been absorbed in preference to the petitioners does not mean that the non‑absorption of the petitioners was due to mala fide reasons. We cannot, therefore, grant any relief to the petitioners and accordingly, dismiss both the petitions. There will, however, be no order as to costs. K. B. A. Petition dismissed.