P L D 1960 Supreme Court (Pak (PLP)

CORNELIUS, J.-These appeals by the Provincial Government of West Pakistan have been brought before the Court on the basis of certificates granted by the High Court of West Pakistan, and call in question writs which have been awarded to the respective respondents, namely, Mr. Fateh Ullah Khan .in Civil Appeal No. 15 and Mr. Ataur Rehman in Civil Appeal No. 45, in matters affecting their service as Engineers in the Public Works Department of that Government. The facts of the two cases are closely similar and therefore, they may be disposed of by means of a single judgment. Each of the respondents joined the service of the North-West Frontier Province in the capacity of an Assistant Engineer, Mr. Fateh Ullah Khan on the 21st June 1948, and Mr. Ataur Rehman on the 1st October 1947. The Public Works Depart ment of that Province was concerned with work in two branches, namely, the Irrigation Branch and the Buildings and Roads Branch. A joint cadre was maintained for the entire staff of the Department, and from time to time officers were detailed to work on the Irrigation side or the Buildings and Roads side as was found necessary by the Government. With respect to Mr. Fateh Ullah Khan, the Government's averment was that he had worked for four years on the Buildings and Roads side and for three years and four months on the Irrigation side, during his total service of seven years and four months up to October 1955. As for Mr. Ataur Rehman, it was averred that he had served for three years and nine months and nine days on the Irrigation side, and for four years, one month and twenty-one days on the Buildings and Roads side. Mr. Fateh Ullah Khan challenged this statement in respect of his service on the Irriga tion side saying that "the service of three years and four months was not exclusively on Irrigation side, but it was on both Irrigation and Buildings and Roads Branch," and made the point that in consequence his total service on the Buildings and Roads side was far in excess of the service on the Irrigation side. Mr. Ataur Rehman also challenged the figures furnished by the Government, and asserted that his service on the Irriga tion side was for two years and three months only, and that he had served the balance of his time, namely, five years and eight months on the Buildings and Roads side. Nevertheless, these averments and replies make it perfectly clear that it was optional for the Frontier Province Government to utilize the services of these two officers at their pleasure and according to the public necessity either on the Irrigation side or on the Buildings and Roads side, and that this option was actually exercised. There need be no difficulty therefore in holding that it was a condition of service accepted and enforced prior to the 14th October 1955 when the Frontier Province was integrated into West Pakistan Province, that each of these officers could have been required to work the whole of his time on the Irrigation side, or on the Buildings and Roads side, if so required by the Government, in the exigencies of the public service. That principle cannot be allowed to be overridden by any expressed preference or assumed aptitude on the part of the officers concerned, much less by such incidental matters as selection for "foreign aid" scholarships abroad, of which Mr. Ataur Rehman has made some use in presenting his case. When the integration took place, the two Branches were subjected to a separation, and officers were distributed so that each of the separate Branches had its own separate cadre of officers. The records show that the largest number of officers preferred to serve on the Buildings and Roads side, and therefore it was necessary for the Government to exercise their powers in order to provide a proper number of officers for work on the Irrigation side. How the distribution was actually made will be stated in the sequel. Nothing has been brought upon the record to show what was the estimate prepared by the Government as to the require ment of officers on the two sides, but a considerable point has been made in the judgments delivered in these cases by the High Court of the fact that out of 23 officers available, for the superior posts, 10 were allocated to the Buildings and Roads Branch, against 12 permanent posts sanctioned for that Branch but to the Irrigation Branch 13 officers were assigned against 9 permanent posts sanctioned at that time. This was treated by the learned Judges as being "a remarkable anomally" and "hardly intelligible." The Government explained that they had a proposal to increase the number of permanent posts on the Irrigation side, by two posts of Superintending Engineers and three posts of Executive Engineers, so as to make in all 14 posts against 13 permanent officers, who had been detailed for that Branch. In actual fact, by the time the case came up before this Court, three posts had been added permanently, namely, one post of Superintending Engineer and two posts of Executive Engineers, so that the "anomally" was almost removed. The arrangement made is, in our opinion, intelligible on the basis, that whereas the future requirement could be estimated with some degree of exactness regarding the Buildings and Roads Branch, on the Irrigation side there were proposals for expansion, but the exact number of posts required to meet the expansion eventually sanc tioned could not be immediately determined. The actual facts show clearly that the prospect of expansion on the Irrigation side was not illusory. For, since the judgment in the High Court was delivered, Mr. Ataur Rehman was confirmed as a Class I officer on the Irrigation side in 1957. The High Court bad issued in favour of Mr. Ataur Rehman a direction that his "service should be so utilized as to make it possible for him to earn his prospective promotion as he would have earned it in the joint cadre." The learned Judges were aware that circumstances might arise in which his promotion might be accelerated, and therefore they added that his promotion should not "necessarily be deferred till that date if unforeseen circum stances intervene and make it possible for him to earn it earlier." While refraining from issuing any direction that he should be "necessarily allocated to the Buildings and Roads Branch," they yet opined that the Government would find it inconvenient to keep him in one Branch, and at the same time to maintain his seniority account in the other Branch, "since he cannot earn promotion in due course on the Irrigation side." The latter declaration has been falsified. As the case was presented before the learned Judges, it was said that the earliest date on which Mr. Ataur Rehman could be confirmed as an Executive Engineer in the joint cadre was the 1st May 1964, while in the separate Irrigation cadre he could not expect this promotion until the 19th May 1965. It is unnecessary to emphasise bow little reliance can be placed on these estimates of dates of promotion, which depend upon a great number of unpredictable contingencies. But in the case of Mr. Ataur Rehman, a clear "prospect" of acceleration of promotion was placed before the Court by the averment that the addition of five superior posts to the permanent staff of the Irrigation Branch had been proposed and was under consideration. The learned Judges ignored this `prospect' and confining themselves to the paper estimates, which were designated by the expression "as things stand at present," they reached the conclusion that "in the ordinary course the petitioner's prospects of promotion are injured by his allocation to the Irrigation Branch." The event has sufficiently proved that this was an erroneous conclusion, but it is necessary to con sider the findings of the High Court on two points of an inter mediate character. The finding of the learned Judges that the prospects of promotion of Mr. Ataur Rehman had been injured by his allocation to the Irrigation Branch has been reached in relation to the terms of section 8, subsection (3) of the Establishment of West Pakistan Act, 1955, which are produced below :

"(3). All persons in the service of the Crown, serving in connection with the affairs of the specified territories, and all persons holding civil posts under the Government of the State of Bahawalpur, or the State of Khairpur, or the Baluchistan States Union, shall, as from the appointed day, be deemed to be persons serving the Crown in connection with the affairs of the Province of West Pakistan on such terms and conditions as the Governor of the Province of West Pakistan may determine; Provided that

(a) such terms and conditions shall not be less favourable than the terms and conditions admissible to them immediately before the 10th day of August 1955 ; and (b) notwithstanding the terms of his appointment in the specified territory, any such person may be required to serve in any post or capacity and in any part of West Pakistan." The learned Judges first found that the expression "terms and conditions" includes "prospects of promotion". Holding that ft was the duty of the Government to assure to Mr. Ataur Rehman by the action which they took at the integration, "terms and conditions" which were in all material respects as favourable to him as were those that applied to him immediately before the integration, and finding upon the basis of the paper estimates referred to above that his date of possible promotion to the next grade, namely, that of Executive Engineer was calculated to suffer postponement by about a year as a result of the new orders, they came to the conclusion that the statutory assurance had been violated in Mr. Ataur Rehman's case by his allocation to the Irrigation Branch. They also expressed the opinion that such a decision as the allocation of Mr. Ataur Rehman to the Irrigation Branch involving a change in "conditions of service" could only have been made by a rule under the Con stitution, and the orders in question "can at best be regarded as a rule which, having not received the approval of the Governor, is illegal." It has already been observed that in the joint cadre of the Frontier Province all the officers were liable to serve on either the Irrigation side or the Buildings and Roads side as required by the Government. The power of the Government to utilize the services of its officers in such manner as the Government may deem fit is one which belongs to the essential frame work of the public service, and cannot be thought to be exercisable subject to any rights vested in the officers themselves, in the following words taken from F. R. 11 :

"Unless in any case it be otherwise distinctly provided, the whole time of a Government servant is at the disposal of the Government which pays him, and he may be employed in any manner required by proper authority, without claim for additional remuneration . ...". This principle is seem to be repeated in proviso (b) to section 8 (3) reproduced above, where it is strengthened by the express decla ration that it is not to be governed by the terms of appointment of the officers concerned. It seems to us impossible in the face of the wording of this proviso to support the conclusion reached by the learned Judges, which has the effect of overriding a power necessarily vested in the Government, merely in order to satisfy certain expectations cherished by the officers in question. Assuming, though by no means holding that "prospects of promotion" in the sense advanced by the officers in these cases can be included within the expression "terms and conditions of service." It is nevertheless clear that nothing contained either expressly or by implication in those terms can have effect to override the power of the Government to require the officers concerned to serve in any post or capacity in any part of West Pakistan at the option of the Government. The Establish ment of West Pakistan Act, 1955, was a Constitutional Act passed by the Constituent Assembly of Pakistan, and its provisions are enforceable notwithstanding anything contained in any Acts or Rules to the contrary. In making the allocation of officers to two Branches, which had been constituted in exercise of the plenary power of the Government to order the administrative affairs of the Provinces, the Government were not making any rules as to the conditions of service, and did not require to make any rules as to the conditions of service of the officers involved, but on the contrary the Government were issuing orders within their powers as they deemed fit and proper in the public interest. Although the Government were not obliged to have regard to the terms and conditions of service of the officers concerned, the statement of their case upon the record shows clearly that they had carefully considered the effect upon the officers concerned of the new orders, which they were obliged to make and to enforce, against the wishes of sortie of those officers, through the circumstance that a great majority of the officers in the joint cadre had expressed a preference to serve on the Buildings and Roads side, when the question of bifurcation was raised. The Government in order to meet the difficulty, appointed a committee of three officers, namely, two Chief Engineers and a Deputy Chief Engineer to make the distribution of posts and officers and the report of this committee was eventually accepted and given effect to by means of an order of allocation issued by the Chief Engineer of the Frontier Province, which went on to say that the Chief Engineer would not entertain any appeals against the allocations which were being made. There is every reason to presume that this order was issued with the knowledge of the Frontier Government, and it must therefore be regarded, not as a rule as the learned Judges in the High Court appear to have thought, but as an expression of the will of the Government of the nature provided for under F. R. 11, and by proviso (b) to section 8(3) of the Establishment of West Pakistan Act, 1955. It is also not possible to support the conclusion of the learned Judges of the High Court that by the terms of section 8 (3), officers were given an assurance that their prospects of promo tion to higher services would be retained intact. That sub section is expressed so as to convert all officers of the various Provinces and States which were being integrated into the Province of West Pakistan, servants of the Crown in connection with the affairs of the new Province, and the provision as to the terms and conditions of their service was that these should be such as the Governor may determine. The effect of proviso (a) is in the nature of a restraint upon the power of the Governor so that in determining the terms and conditions of any officer, he should act so as to make them not less favourable than the terms and conditions which were "admissible to (him) immediately before the 10th day of August 1955". The expression is one which has the effect of strict limitation in relation to a given time, and appears to us to avoid anything in the nature of future poten tiality in regard to the terms and conditions. The officers whose services were being placed at the disposal of the new Province came from a number of different Provinces and States where the terms and conditions of service varied very greatly. It is difficult to suppose that, for instance, a school teacher serving in the State of Khairpur could be provided in the new Province with precisely the same prospects of promotion as he was enjoying before the integration, in State service. But he could certainly be provided with an equivalent post, carrying equivalent salary, and subject to an equivalent age of superannuation. To provide for preservation of their original "prospects of promotion" with respect to individual officers coming from so many different sources would, in our opinion, be an impossible task and there fore, we consider that the expression "terms and conditions admissible to them before the 10th day of August 1955" must be understood in a narrow and limited sense to refer to concrete matters relating to the actual service of the person concerned on the, specified date. In that view of the matter, Mr. Ataur Rahmani who was a confirmed Assistant Engineer, and was officiating as an Executive Engineer on the specified date, upon certain salary was entitled to the same appointment and the same salary, as well as the same period of service in point of superannuation, immediately after that date in the new Province, but we do not conceive that the Governor would be required so to employ Mr. Ataur Rehman as to ensure that his prospects of confirmation as Executive Engineer in a higher service would be exactly the same as before. Promotion into a higher service requires an exercise of judgment by the Government, often based upon consultation with adminis trative bodies as well as independent body such as the public Service Commission, as to which act of judgment no prediction of any kind is possible. Mr. Ataur Rehman had calculated his date of promotion to Class I Service in the joint cadre on a notional basis, but the event has found him being so promoted some seven years earlier than he had anticipated. It appears that this unexpectedly favourable result has accrued not only through increase in the number of permanent posts available to him, but also be excellence of performance in his duty. Things may have gone differently. Orders increasing the number of posts may have been further delayed, or a serious fault in his work or character may have appeared, so as to produce the opposite result. No predictions as to dates of future promotion can safely be made, and certainly not for the purpose of founding a right to promotion to justify a writ such as that which has been issued in this case. For these reasons we consider that the writ or direction issued by the High Court of West Pakistan in relation to the case of Mr. Ataur Rehman should not in the circumstances have been issued, not only because in the event it is proved to be unnecessary, but because it has the effect of allowing to him a pretended right in mitigation of the paramount power of the Government to utilize his services according to their option. The case of Mr. Fateh Ullah Khan, is similar. At the integration, he was an Assistant Engineer in the joint cadre officiating as an Executive Engineer, and against his wishes, he was allocated to the Irrigation Branch. The paper estimates as to his date of confirmation as Executive Engineer in the Irrigation Branch under the new conditions and the possible date under the old conditions are of no value in view of the recent orders increasing the number of permanent posts in the higher grades by three, and the statement that a further increase by two posts is in contemplation. Although Mr. Fateh Ullah Khan has not yet been elevated into the Class I Service of Engineers, the prospect is that, subject to satisfactory work and other relevant conditions being satisfied, this event will occur much earlier in his case than the date which he has somewhat pessimistically calculated. The example of Mr. Ataur Rehman is before him. In his case, the High Court had issued a direction to the Government "that they should either arrange the posting of the petitioner in such a manner, or should make a rule about promo tions with reference to the old joint N.-W. F. P. cadre of Engineers in such sense as to ensure to the petitioner the same or similar prospects of promotion as he enjoyed in the old N.-W. F. P. joint cadre." On the view which we have taken of the relevant statutes, the direction would appear to infringe the paramount power of the Government to use the services of Mr. Fateh Ullah Khan as they choose, under proviso (b) to section 8 (3) of the Establishment of West Pakistan Act. The orders were made to meet a contingency of isolated occurrence, viz., the integration of several Provinces into a single Province, and to render them subject to a rule is not conceivable. We accordingly allow both these appeals and setting aside the orders of the High Court in each case, direct that the writs issued should be recalled. The respondent officer will bear the cost of the appeal in each case. A. H. Appeals allowed.