P L D 1959 Supreme Court (Pak (PLP)

MUHAMMAD MUNIR, C. J.‑--This is an appeal, by special leave, by the Government of Pakistan from the judgment of a Karachi Bench of the High Court of West Pakistan, directing the appellant to restore Moazzam Hussain Khan respondent to the post of Director of Intelligence Bureau, Karachi, or to an equivalent post. The direction was issued on an application by the respondent under Article 170 of the late Constitution questioning the validity of an order by the appellant reverting him to the Province of East Pakistan. The respondent is a member of the Police Service of Pakistan. He was officiating as Assistant Inspector‑General of Police in East Pakistan when in January 1948 he was appointed as Deputy Director, Intelligence Bureau, Dacca: The normal tenure of the post of Deputy Director was 4 years, but on the expiry of that period his tenure was extended first for one year and then for another year ending on some date in January 1954. Before that date, however, he was promoted to the post of Director, Intelligence Bureau, Karachi, the normal tenure of which is 5 years. This period was to expire in October 1958, but in March 1957, he was reverted t East Pakistan. He did not accept this reversion and though he was offered by the Government a post equivalent to that of the Inspector‑General of Police he went on leave and continued to be so until he retired from service. The High Court has held that the reversion of the respondent from the post of Director, Intelligence Bureau, Karachi, to the Province of East Pakistan was a reduction in rank and invalid by reason of Article 181 of the late Constitution inasmuch as he was not given a reasonable opportunity of showing cause against the reversion. The posts of Director, Deputy‑Directors, Assistant Directors, Central Intelligence Officer, Deputy Central Intelligence Officer, Deputy Superintendent of Police, and Tehsildar in the Peshawar Bureau have been declared by the Government to be tenure posts in the Intelligence Bureau. Their normal periods of tenure are different being 5 years in the case of the Director and 4 years in the case of Deputy Directors. The posts are neither reserved for members of, nor are borne on the carde of posts in the Police Service of Pakistan though they are normally held by Police Officers, and Army officers are eligible for appointment. Since the respondent was appointed on 13th June 1955 "substantively to the tenure post of Director, Intelligence Bureau, Karachi, with effect from the 6th October 1953, for the period of his tenure", the High Court has held that this appointment was a minimum period of 5 years ending on 6th October 1958 and that therefore his earlier reversion to his substantive post in the Province of East Pakistan, which carries a lesser salary, amounts to a reduction in rank, A tenure post is defined by Fundamental Rule 9 (30‑A) as "a permanent post which an individual Government servant may not hold for more than 1a limited period", and the point made by the learned Attorney General is that the period of 5 years was the maximum period of the tenure and that when this definition of a tenure post is read with the order by which the respondent was appointed "with effect from the 6th October 1953 for the period of his tenure", the inten tion must have been that he was not to hold the post for more than a period of 5 years. That being so, it is argued, the Govern ment was not precluded from reverting him to his province before the expiry of that period. The other point urged by him in sup port of the Appeal is that under rule 2 of the rules by which these tenure posts were created an officer who has been promoted from one of the tenure posts to another is liable to reversion to the Province concerned on completion of the tenure of the earlier post to which he was first appointed, and that since on the expiry of his tenure as Deputy Director the respondent had incurred the liability to reversion, he must be determined to have been appointed as Director on an extended tenure within the meaning of rule 3 which provides that the normal periods of tenure are relaxable in exceptional cases on the merit of each case and extendable in consultation with the Provincial Government concerned. He thus maintains that the respondent after the completion of his original tenure of 4 years as Deputy Director was liable to reversion to his Province at the pleasure of the Government. The contention on behalf of the respondent, however, is that the order of his appoint ment assured him a minimum period of 5 years and that his reversion before the expiry of that period was a breach of his conditions of service which could be prevented by the High Court by means of a writ or a direction. It is not the respondent's case that his reversion before October 1958 was dismissal or removal from service within the meaning of clause (2) of Article 181 of the late Constitution. What is urged and has been accepted by the High Court as correct, is that by reversion the respondent was reduced in rank. But there can be no question of reduction in rank if the order of his appointment is taken to mean that the normal period of the tenure of the post could in an individual case be reduced or extended after the appointment. In my opinion, the fact that the period of five years is described in the rules as a "normal" period which is "relaxable" and "extendable" shows that no Government servant who is appointed to the post of Director, Intelligence Bureau, can as of right claim to remain on that post for a full period of five years and that an earlier reversion to his original service cannot amount to a reduction in rank. The tenure, though fixed, is essentially a temporary tenure, and if reversion on the completion of full tenure cannot amount to reduction in rank, I do not see how an earlier reversion can. Such reversion may amount to removal, but it is not removal from service within the meaning of Article 181 of the Constitution. It appears to me that the words "reduced in rank" in that Article are a compendious way of describing penalty (iii) of Rule 49 of the Civil Services (Classification, Control and Appeal) Rules just as the words "dismissed or removed from service" in that Article have reference to penalties (vi) and (vii) of those Rules. In the case of members of the Police Service of Pakistan reduction in rank means reduction to a lower post or time‑scale, or to a lower stage in a time‑scale, which is a penalty recognised by rule 49 of the Civil Services (Classification, Control and Appeal) Rules that may, for good and sufficient reasons, be imposed on the members of that service. Under rule 14 of those Rules, one of the classes of public services mentioned is the "All Pakistan Services", which are defined by the succeeding rule as consisting of members of the services included in Schedule I to those Rules and persons who hold in a substantive capacity posts borne on the cadres of those services. By Rule 24, the strength, including the number and character of posts, of every All‑Pakistan Service has to be deter mined by the President or in accordance with rules made by him. The respondent was member of the Police Service of Pakistan which is one of the services included in the Schedule, but the post of the Director of Intelligence Bureau is not borne on the cadre of posts for that service. Therefore it follows that since the respon dent was not reduced from a higher post in the police department to a lower post in the same department or from a higher scale to a lower scale or from a higher stage to a lower stage in that department, his reversion to the Province did not amount to reduction in rank. He was on deputation with the Central Government for a period defined only in terms of a maximum duration and his posi tion in the service to which he belongs was not adversely affected by the reversion. It is not shown that by his being appointed to the tenure post of Director of Intelligence he suffered any loss or was overlooked for appointment to a superior post in the police department of East Pakistan; and, under F. R. 14, clauses (d) and (c), his lien revived as soon as he reverted to his origi nal post. Thus even if the order appointing him as Director of Intelli gence be taken to connote a minimum tenure of 5 years, he can have no grievance remediable by legal process. It would be impossible to contend that when an officer, belonging to an All Pakistan Service, is appointed to a post at the Centre which is not reserved for the members of that services or is not borne on the cadre of posts for that service, he cannot be reverted to his original post before the expiry of any period which may be so indicated. The reversion may be due to the exigencies of the public service or in the public interest and no individual legal right is thereby infringed. The reversion can neither found estoppel nor can amount to a breach of contract because such a tenure is necessarily subject to the condition that the Government servant will be kept on the particular post for the full period indicated only if the public interests are not thereby adversely affected. There can be no question reduction in rank in such cases because the special tenure post not being on the cadre of posts for that service his employment on such post was essentially in the nature of a concession or favour which could be withdrawn by the Government earlier if such course became necessary in the public interest. In the present case, the two services, namely, the police department of East Pakistan and the Intelligence Bureau, Karachi, are two different services and a mere transfer from the former to D the latter, even if a maximum period for which transfer is to operate is stated, does not, in the absence of proof that the trans ferred officer's right in his original services have been affected, give him any cause of complaint, certainly not such a cause as might justify the High Court to exercise its extraordinary power of controlling Government action by a writ or a direction. I would, therefore, accept this appeal, recall the direction issued by the High Court but in the circumstances of the case make no order as to the costs of this appeal, and direct that the costs in the High Court will be borne by the parties. SHAHABUDDIN, J, ‑

I agree. CORNELIUS, J.‑

I agree. AMIRUDDIN AHMAD, J.‑

I agree with my Lord the Chief Justice in the interpretation of the Rules governing the service of the respondents, but I should like to add that in view of the fact that Government Notification dated the 13th June 1955, appointing respondent No. 1 substantively to the post of Director for the period ending on the 6th October 1958, i.e. appointing him defi nitely for the normal period of 5 years which was within the competence of Government and reverting him before the end of the normal period for no fault of his, amounts to a breach of promise. The reversion has entailed hardship on the respondent No. 1 and caused him loss of emoluments. It was the realization of this which induced the then Prime Minister in his note dated the 10th April 1957 to suggest that instead of reverting him to the service of East Pakistan he should be sent on a temporary deputation to Bangkok and thereafter he might be appointed as O. S. D. on an I. G.'s pay in the Ministry of the Interior, which, however, did not materialize in a firm offer. I would, however, allow the appeal, as the respondents's remedy did not lie in a petition for writ which he filed in the High Court, but I would observe agreeing with the suggestion of my learned brother S. A. Rahman, J. that monetary compensation ought to be paid by Government to the respondent No. 1 in the circumstances of the case. RAHMAN, J.‑--I venture to differ from the majority view in this case, though not without a considerable amount of hesitation, considering the weight of authority by which that view is supported. The facts of the case are fairly simple and are not in dispute. The respondent, it is agreed, held the post of a D. I. G. in a permanent capacity as a member of the P. S. P., assigned to East Pakistan Province. He was officiating as Asstt. Inspector‑General in his own cadre when with effect from the 9th January 1948, he was appointed Deputy Director Intelligence Bureau, Dacca, a tenure post as defined in R. 9 of the Fundamental Rules, under the Central Government. After serving out the normal tenure of that post, he was granted two extensions for a year each, the last extension commencing from the 9th January 1953. During the currency of the second extension, on the 5th October 1953, respon dent was appointed Director Intelligence Bureau, Karachi, another tenure post under the Central Government, admittedly carrying the rank of Inspector‑General of Police. On the 13th June 1955, a notification was issued by the Government of Pakistan, Cabinet Secretariat, announcing the appointment of respondent M. H. Khan; "substantively to the tenure post of Director, Intelligence Bureau, Karachi, with effect from the 6th October, 1953, for the period of his tenure." However; respondent was informed by means of a "secret and immediate letter dated the 30th March 1957, signed by the then Secretary, Cabinet Secretariat, that it had been decided to replace his services at the disposal of the Government of East Pakistan, on relief by another officer who was expected to join shortly. In this letter it was also mentioned that after his rever sion, his services were likely to be required abroad at SEATO Headquarters for one or two months. A notification dated the 10th June 1957, announcing his reversion in the above sense followed, in the Gazette of Pakistan though it seems he had actu ally been relieved of the post on the 10th April 1957. After a representation to the Prime Minister, which proved abortive, the respondent chose to proceed on leave, initially for four months from the 10th April 1957, which was later extended, instead of joining his substantive post in his parent Province. He then applied for a writ against the implementation of the Govern ment decision, to the West Pakistan High Court, Karachi Bench and succeeded in obtaining a direction to the Government that the petitioner be restored to the post of Director of Intelligence Bureau Karachi or to an equivalent post. The learned Judges who dealt with the case found that the respondent was reduced in rank in consequence of the Government orders in disregard of the manda tory provisions of Articles 181 (2) of the late Constitution. Leave to appeal was granted to the State of Pakistan in this case to consider the questions raised in the petition for special leave, relating to the interpretation of certain statutory rules and the extent of the High Court's jurisdiction to issue writs. At the outset, it seems necessary to clear the ground for dis cussion, by considering the true construction of the order dated the 13th June 1955, of the Central Government appearing at page 48 of the paper book, by virtue of which, respondent was "appointed substantively to the tenure post of Director Intelligence Bureau Karachi with effect from the 6th October 1953, for the period of his tenure." It was suggested at one stage of the argument, by the learned Attorney‑General, on behalf of the appellant, that the words "for the period of his tenure" occurring in this order, had reference only to the un-expired period of tenure of the post of Deputy Director, which respondent held prior to his appointment as Director Intelli gence Bureau Karachi. A Government letter dated the 24th April 1952 (P. 42) was relied upon in this connection. By this letter the Central Government had fixed tenure period for certain posts, subject to relaxation being granted by Government in special cir cumstances. These posts included "certain gazetted posts normally held by Police Officers in the Intelligence Bureau" according to the subject heading of the letter. Five years' tenure was assigned to the post of Director, Intelligence Bureau, Karachi, and a four years' tenure to the post of a Deputy Director (at Headquarters and at outstations). It was inter alia stated in this letter that the periods of tenure specified therein would be calculated from the date of appointment and that an officer who might have been promoted from one of the posts mentioned, to another, or trans ferred in the same capacity from one office to another office, would be liable to reversion to the Province concerned, on completion of the tenure of the earlier post to which he was first appointed. I read paragraph three of this letter as a liberalising rather than a restrictive provision in regard to the period of tenure. The suggestion of the learned Attorney‑General has obviously no substance, in the circumstances of the present case. When it was‑pointed out to him that even the extended period of tenure pertaining to the Deputy Director's post in relation to the respon dent, had expired long before the 13th June 1955, when he was appointed substantively to the post of Director with effect from the 6th October 1953, he agreed that the expression "his tenure" in the context of the order, could only have reference to the tenure fixed for the post of Director, if the order was not to, be reduced to an absurdity. This would clearly mean that the respondent was appointed for a definite period of 5 years, commencing from the 6th October 1953, to the post of Director, Intelligence Bureau The alternative argument was then advanced that even if this be the correct position, there was no right in the respondent to retain this particular post which was a tenure post, for the full period of 5 years. `Tenure post' is defined in F. R. 9 (30‑A) (Vol. 1) of the Fundamental Rules as one which "means a permanent post which an individual Government servant may not hold for more than a limited period". It was argued that under the rule only the maximum period for which such a post could be held by a Government servant, was fixed and no minimum period could be guaranteed, during which he could not be disturbed, without attracting the provisions of Article 181 (2) of the late Constitution. It was conceded that by virtue of Article 2 (4) of the President's Order I of 1958, the same terms and conditions of service are preserved for the respondent, as obtained in his case, before the abrogation of that Constitution but it was contended that the fact of the post in question being a tenure post, imported necessarily the liability to reversion of the incumbent, at any time before the expiry of the prescribed tenure. That argument, in my opinion, is not open in the instant case, where the appointment was made for a definite period not exceeding the fixed tenure of the post, viz. for five years commenc ing from the 6th October, 1953, on a substantive basis and subject to no other conditions. In the face of these facts, the circumstance that it was a tenure post, loses significance. In my humble judgment, Government were either bound to follow the procedure envisaged by clause (2) of Article 181, if they wished to denote him or in the alternative, they could retain him in this post for full five years from the relevant date or if they wanted to shift him or revert him to another post, they could do so only if it did not involve any reduction in rank within the meaning of the Article. Once having exercised their option to appoint him to the post for the full tenure period, it would entail an undue reflection on his competency, if Government were to arbitrarily cut short his tenure, to his prejudice, however much they might disclaim any intention to discredit him. I should not be understood to imply that any contractual rights accrue to the Government servant in question in such a situation or that any official has a vested right to retain a particular post. I merely wish to emphasise that these facts lay the foundation for invoking the guarantee embodied in Article 181 (2) of the late Constitution, in appropriate circumstances. This brings me to the question whether in point of fact, the reversion of the respondent involves any reduction in rank. It was at first assumed (and that assumption also appears to have been made by the then Prime Minister, Mr. Suhrawardy, in his note dated the 10th April, 1957 recorded on respondent's representation) that while respondent was working under the Central Government, two officers junior to him (Mr. Doha and Mr. Ismail) had been successively appointed to the post of I. G., on a permanent footing in his parent Province, so that the Government of that province would find it embarrassing to have him on their hands, due to their inability to fit him in their official hierarchy, in his proper position. It is now stated on behalf of the appellant that both these officers were actually senior to him in service so that there could have been no difficulty in appointing the respondent to the post of a D. I. G., which he held substantively before proceeding on deputation for service under the Central Government. Indeed the East Pakistan Government while granting him the leave applied for, on his reversion, declared their clear intention to employ him as a D. I. G. of Police or to appoint him to some similar other post is East Pakistan, on the expiry of his leave. Had the assumption been correct even then the status quo ante could have been easily restored and the respondent given his rightful place, under F. R. 14, which requires that officers junior to respondent could have been promoted only in a provisional capacity, subject to liability of reversion, during the latter's absence on deputation. That predicament, however, did not really arise and it is plain that on relief from the post of Director under the Central Government, the respondent could only go back to the post of D. I. G. in East Pakistan. In the concise statement of the appellant's case, it is expressly recited that the respondent "was appointed as Director of Intelligence Bureau Karachi, which is an appoint ment of the rank of Inspector‑General of Police." On the factual plane, therefore, it seems to me that the respondent suffered a reduction in rank, on reversion to his own province, as he had to occupy a lower post‑that of D. I. G. of Police. We are informed that the post of Director of Intelligence Bureau Karachi carries a basic salary of Rs. 3,000 per month, whereas a D. I. G.'s post is in the grade of Rs. 1,950‑2,150 p.m. But it is urged that though in common parlance, this result may be understood as reduction in rank, it would not in law amount to " reduction in rank ", within the meaning of Article 181 (2) of the late Constitution. It has been mentioned in the second ground of appeal in the concise statement for the appellant that "having regard to the context of R. 49, Civil Services (Classification, Control and Appeal) Rules, dismissal or removal from service or reduction in rank, in view of the consensus of the highest judicial opinion, should be by way of punishment on personal grounds and on a charge of indiscipline or misconduct etc., in order to attract the provision of clause (2) of Article 181 of the Constitution". Rule 49 of the Classification Rules specifies the various penalties that may for good and sufficient reason be imposed on a Government servant. In the present case, it is stated, the reversion took place merely on administrative grounds, having no relation to respondent's efficiency or integrity as a public servant. I agree that any reduction in rank, imposed on a Government servant, expressly by way of penalty, for lack of efficiency or for misbehaviour (using the word misbehaviour in a very broad sense), would be within the mischief of Art. 181 of the late Constitution. But would a wholly arbitrary order having that result, fall out‑H side the four corners of that Article? Could a competent authority, for instance, say to an officer in the position of the respondent "Mr. so and so, I can find no fault with your, conduct as a public servant; you have been efficiently discharging the duties appertaining to the particular post you are holding; you are, from all accounts, an esteamable official in every respect; but unfortunately for you, I happen to dislike your peculiar cut of nose and I have, therefore, regretfully, decided to revert you to a lower post"? With due deference, I do not see why such a case should not be covered by the provision cited, although ex‑hypothesis no aspersion is cast on the capability or conduct of the official concerned, provided of course in point of fact there is an actual reduction in rank. The opposite conclusion would lead to the absurd result that a delinquent official is entitled to an opportunity to show cause before any such action is taken against him but that an honest one must be denied statutory protection, if it is declared for his satisfaction that there is no intention to impugn his personal‑ capacity or character‑a cold comfort indeed. In certain cases, moreover, the action taken may be merely camouflaged as regards the true intention, by an innocent‑looking administrative order and there may be mental reservation of an adverse opinion. In such cases the substance rather than the form of the order, having regard to all the relevant circumstances, will have to be considered and the precau tion taken to conceal the true nature of the transaction should not be allowed to defeat the statutory guarantee. In the present case, there was in fact reduction to a lower post and no reasons have been disclosed for the decision beyond those contained in the formula that it was "a purely administrative measure". If Government had been genuinely solicitous of the respondent's interests and merely resorted to the impugned step, for reasons not connected with any personal short coming of the respondent, it was not beyond their resources to create another equivalent post temporarily for his benefit till he retired in October, 1958, assuming that no other existing post of equivalent status was available for his accommodation. No such attempt was made, on the date of his relief and I have, therefore, formed the impression that either the Government order was of an arbitrary character, dictated by a whim of the competent authority, or in the alternative, an attempt to short-circuit the procedure visualised by Art. 181 (2), by the device of non‑disclosure of the ground for action, under cover of administrative exigency. I am of the opinion that whichever alternative is accepted, the action will fall within the ambit of clause (2) of Art. 181 of the late Constitution. In the course of argument at the bar, the contention was also raised that the post of Director Intelligence Bureau Karachi, being one under the Central Government, even if on reversion to his own Province, respondent has to occupy a post lower in point of status and emolument, there ‑ is no reduction in rank within the meaning of cl. (2) of Art. 181. `Rank', it is suggested, has a meaning in the context of the petitioner's service cadre in his own Province as it involves the fixation of his relative position vis‑a‑vis other members of that cadre but that it has no practical significance in 'relation to a higher post under a different Government or outside his own cadre. With respect, it seems to me that this would amount to introducing qualifying words into the 'relevant statutory provision where none exist. In the absence of any such words of limitation occurring in Art. 181 (2), 1 am unable to persuade myself to accept the suggested narrow interpretation of the expression "reduction in rank". Prima facie, it seems to me that if an official occupies a higher post, with a definite understanding as to the duration of his tenure and he is then relieved of that post without his consent, before the expiry of the duration mentioned, with the inevitable consequence that he suffers a loss in status, dignity and emolu ments in his new post, whether existing in the same cadre with the first post or not, there is reduction in rank hit by Article 181 (2). "Rank" may have reference to a cadre as well as to a post. No statutory definition of the term is available and even in the classification rules, there is no indication, to my mind, that the lower post must belong to the same cadre as the higher post, for bringing the case within R.

49. The relevant words of the Rule are "reduction to a lower post or time‑scale or to a lower stage in a time‑scale". I do not feel pressed to adopt the view that "reduction to a lower post" necessarily means reduction to a post in the same cadre. The words are general and would seem to cover the instant case. Some capital was sought to be made of the fact that a promise was held out to the respondent that if lie consented to go to Bangkok on foreign service under SEATO, for two or three months, on his return, he might be appointed to an I. G.'s post under the Central Government and that the offer was declined by the respondent. The respondent's case is that there was only a vague sort of offer but no firm commitment. With this appraisal of the situation, I am inclined to agree. In the first place, he could not have been compelled to proceed on foreign service against his will and secondly the Prime Minister`s "offer" was couched in somewhat guarded language. This is what was said:‑ " I had therefore suggested that he might go on special duty to Bangkok for a period of 3 months. This would have given him a certain amount of experience in the subversive activities section of the SEATO, which might have also been helpful to him in other way. I am told that he has not accepted this offer, presumably because he thought that he was entitled to stay on till October, 1958. The offer is still open to him. On his return from Bangkok, he may be appoint ed as O. S. D. on an I. G.'s pay in the Ministry of the Interior to revise the police manuals". I do not regard this as a firm offer of appointment to an I. G.'s post from the due date and in any case it suffered from the infirmity that it was subject to acceptance of the SEATO assignment. Incidentally it may be mentioned that even an I. G.'s post would be lower than the post of Director Intelligence Bureau, according to respondent's contention. I do not consider it necessary to express an opinion on that question as it does not arise for decision in this case. The point taken on behalf of the appellant in the concise statement that a mere breach of statutory rules could not provide the foundation for a writ, as it would involve no actionable legal right, must also await an appropriate case for determination. It is not material for our purpose here. I am inclined to hold after a consideration of the material on record that the conclusion reached by the High Court in the circumstances of this case was correct. I would consequently dismiss the appeal with costs. I may add that the respondent was superannuated from service with effect from the 6th October, 1958. Consequently the direction given by the High Court would be satisfied if Government paid the appropriate monetary com pensation to respondent in the present situation. In accordance with the opinion of the majority, the appeal is accepted and the direction used by the High Court is recalled. The Court makes no order as to the costs of the appeal and directs that cost in the High Court will be borne by the parties A. H. Appeal accepted.