P L D 1957 (W (PLP)

WAHIDUDDIH, J.-The petitioner has challenged the order of the Superintending Engineer, being Order No. EC/G-84/2811 dated 1st June 1956 and the other of the Additional Chief Engineer, P.W.D., being Order No. S.100-10/ 608-E dated 31st October 1956 alleged to be the orders of demotion from the post of S. D. O,/Overseer in the P. W. D. of Government of West Pakistan. The petitioner was promoted as S. D. O. under an Order No. 360E-1 dated 15th October 1953 by the Chief Engineer. Sind P. W. D., and was to work as Head Draftsman in Central Design Division, Karachi. This order was cancelled on 2nd January 1954 and the petitioner was promoted as S. D. O. vice Mr. Karim Bux, S. D. O. and posted at Upper, Sind Communication Circle to work as S. D. O. on 30th December 1954. While the petitioner was working as S.D.O. in Ratto Dero Road Sub-Division, he was reverted as an Overseer and was posted in the Irrigation Department. It is alleged that this transfer order was malicious as the petitioner had detected a big fraud of an influential contractor known as Messrs. Haji Khan and Ahmad Bux and others to the tune of about a lakh of rupees in respect of the work done on the Naudero Ratto Dero Road. These contractors are stated to have personal relations with the then Chief Engineer Mr. A. G. Shaikh, and were responsible for his reversion. The petitioner filed an appeal against the said order and on 26th July 1955 he was reinstated as Overseer S. D. O. and again posted as Head Draftsman, Central Sind Communication Circle, Hyderabad vide order No. EC/C-84/509. On 1st June 1956 the petitioner was again reverted to the post of an Overseer vide letter No. EC/G-84/2811. The order in question does not give any reason and no notice to show cause was given to him before reversion: The petitioner filed an appeal, and the Additional Chief Engineer, Buildings & Roads, Southern Zone, Mr. A. G. Shaikh vide his letter No. S-100-10/608/E dated the 31st October 1956 informed him that he was reverted in December 1954 and posted as Head Draftsman which is not an S. D. O's. post and that there is no prospect of the petitioner working as S. D. O. This letter is reproduced below and is marked Exh. H:- Registered No. S-100-10/608-E Office of the Additional Chief Engineer P. W. D. Building and Roads, Southern Zone. Hyderabad, dated 31st October, 1956. To, Mr. Sajjad Ahmad Khan, C/o Mr. Qumar Alam Shaikh, B. A., Shaikhon-ka-para, Shikarpur. Sub : Mr. Sajjad Ahmad, Overseer-- Appeal from him against his reversion as Overseer etc. Reference correspondence resting with your application dated 11th October on the subject noted above. , (2) You were reverted in December 1954 but you were given chance as Head Draftsman which is not a Sub -divisional Officer's post. However, according to the present circumstances there is no prospect of your working as Sub-Divisional Officer. As such you are advised once again to resume your duties as an Overseer in the Mirpurkhas Road Division. (Sd.) Additional Chief Engineer, P. W. D. Building & Roads, Southern Zone. Copy forwarded with compliments to the Superintending Engineer, Provincial Circle, Buildings & Roads. Branch, Hyderabad fox information. Thereafter the petitioner filed an appeal on 24th October 1956 against the said order to the Secretary, Ministry of Communication, Government of West Pakistan, and also an appeal dated 5th November 1956 to the Chief Engineer, West Pakistan, but so far no reply has been received. It is maintained that the aforesaid orders are tantamount to a reduction in rank and as the said orders have been made without notice to show cause, they are illegal and violate the provisions of the Constitution, The respondent-Government have not denied that the petitioner was one of those who were promoted as S. D. Os, but urged that these promotions were only temporary as Assistant Engineers were not available at that time. It has also not been denied that during the time the petitioner was holding charge of this Sub-Division at Ratto Dero, some excess payment on account of supply of stone to the contractors by the predecessor of the petitioner came to light but that was in normal routine during the preparation of final bills and that that matter is still under investigation. It has been further alleged that there were complaints from the public containing serious allegations against the petitioner and from these complaints it also transpired that the petitioner was the brother-in-law of Mr. Z. H. Khan, Superintending Engineer. This fact, for the first time, came to the know ledge of the authorities on 22nd November 1954, and on these reports the petitioner was transferred on that date. (Fide Exh. R. 8). It is further alleged that Mr. Z. H. Khan, in spite of the orders of transfer, allowed the petitioner to remain in his circle till 5th March 1955. It is admitted that on 25th December 1954 the then Chief Engineer Mr. A. G. Shaikh went on tour to Rato dero and found the petitioner's work unsatisfactory. In paragraph 10 of the affidavit the following note of the Chief Engineer has been reproduced :- "I found his work to be most unsatisfactory. He gets good report due to obvious reasons. He has been reverted taking all facts into consideration. He should revert. He should also be transferred to Central Sind Communications Circle. He should be relieved immediately." It is also admitted that in place of the petitioner one Mr. Muhammad Hashim Shaikh was ordered to take over, who belonged to the same community as that of the Chief Engineer Mr. A. G. Shaikh. It was, however, denied that this person was related to him. The most important plea taken by the respondents is contained in paragraph 12 of the affidavit. It is contended that ordinarily Assistant Engineers in Class II Service are to be placed in charge of Sub-Divisions, but when they are not available, selected Overseers are posted as S. D. Os as a stop gap. Such persons got their substantive pay in the capacity of Overseer plus a special pay of Rs.50 per manses so long as they perform the duties of an S. D. O. If at any time, work of such persons is not found to be satisfactory or Assistant Engineers in Class II Service or better qualified or senior Overseers become available, they are reverted to their original post of Overseer. The promotion is always officiating as there is no cadre for the post of S. D. O. and no scale for their pay. There can be no confirmation of such post. Assistant Engineers ordinarily appointed to such posts get their own scale of pay. Rupees 49 and 55 of the Civil Services (Classification, Control and Appeal) Rules, 1930 have no application to the present case. As regards the second promotion order, it is - asserted that it was issued in order to afford a chance to the petitioner to show his worth as Head Draftsman which he failed in respect of outdoor work as S. D. O. Finally, it was urged that even as Head Draftsman the work of the petitioner was found to be unsatisfactory and on 1st March 1956 he was severely warned by the Superintending Engineer, P. W. D. that if no improvement is shown he would be reverted. It was further urged that the post of Head Draftsman was an officiating one and this post also has no scale of pay and that Rules 49 and 55 of the Civil Services (Classification, Control and Appeal) Rules, 1930 are not applicable to them also. In this connection it was also urged that since the petitioner's work as a Circle Head Draftsman was not found to be satisfactory, he was transferred and posted as an Overseer in the Mirpurkhas Roads Division. The petitioner emphatically denied the allegations made against him. The alleged public complaints were shown by Mr. M. A. Lariq, Superintending Engineer, on or about 16th December 1955 to him but the names of the complainants were kept back. The Superintending Engineer was asked orally and in writing to hold an inquiry and was also requested to disclose the names of the complainants so that defamation proceedings may be taken against them, but no action was taken. It was further asserted that the fact that Mr. Z. H. Khan was the brother-in-law of the petitioner was known to the entire Department including Mr. A. G. Shaikh. Allegations and counter allegations are made by the parties against each other and it shows that the condition in the P. W. D. of the former area of Sind is most deplorable and in the interest of efficient administration, the authorities concerned must take immediate steps to improve the situation. In these summary proceedings and for the decision of this matter it is unnecessary for us to decide the reasons for transfer and other actions taken against the petitioner. The sole question for determination in this application is whether the, petitioner was appointed as S. D. O. in an officiating capacity and whether his reversion from the post of S. D. O. to the post of Overseer amounts to a reduction in rank within the provisions of Article 181 of the Constitution. Counsel for the parties in support of their contentions have relied on the Sind Civil Services Rules Manual, Vol. II, and Bombay Public Works Department Manual, Vol. 1, and the Sind Civil Services Conduct. Discipline and Appeal Rules issued under the authority of the Sind Government in 1953. Mr. Sadiq has pointed out that there is no such post as S. D. O. In Appendix V "list of Special Pays" shows that subordinates in charge of the Sub-Division are entitled to special pay of Rs.50 and carries with it higher responsi bilities. He contended that this is not a substantive post and that usually the S. D. O's. are Executive Engineers, Assistant Executive or Assistant Engineers; and where no such officers are available, Overseers are posted. These officers are responsible to the Executive Engineer in charge of the Division for the management and the execution of the work within their Sub-Division. He laid stress on the fact that the appointment of the petitioner as S. D. O. was only officiating as there was no Assistant Engineer available at that time and therefore the appointment of the petitioner again to the post of Overseer was nothing more than an administrative transfer and cannot be considered to be a reduction in rank within the meaning of Article 181 of the Constitution of Pakistan. This contention is not well founded as there is no doubt in our minds that the post of S. D. O. is by itself a substan tive post. During the course of the hearing of this matter it was admitted by the representative of the Department before us that there were 82 posts of S. D. Os. under the Sind P. W. D. It was also admitted before us by the represen tative of the Department that Overseers are either promoted to the office of the S. D. O. or as Assistant Engineer. The order of promotion passed on 15th October 1953 reads as under:- GOVERNMENT OF SIND PUBLIC WORKS DEPARTMENT OFFICE No. 360-E (1) Karachi, dated 15th October 1953. The following Supervisors/Overseers are promoted as Sub-Divisional Officers and posted to the Circles and Divisions noted against each. SN. Name From To 11 Mr. Sajjad Ahmad Khan 2 years course U/S communication circle Central I division B&R to work as Head Draftsman On 2nd January 1954 the following order was passed in respect of the petitioner :- S. No Name From To Remarks 1 Mr.SajjadAhmad 2nd year course Overseer. U/S Communication Circle. U/S C.G Promoted as S.D.O vice Mr.Karim Bux Somro transferred As the learned counsel for the respondents urged that the petitioner was appointed in an officiating capacity, we called upon him to produce the Service Book of the petitioner. The following entry appears in the Service Book:- "Promoted as an S. D. O. (2 years Overseers Course) Vide Government P. W. D. (Sind) No. 360-E (1) dated 15th October 1953." But there are three entries dated 22nd March 1957, showing that the petitioner was working as officiating S. D. O. There is much force in the contention raised by the learned counsel for the petitioner that these entries should not be taken into consideration as they were made after the petition was filed. We have, therefore, not taken them into consider ation for the purposes of this case. Thus the Service Book also shows that the petitioner was appointed as S. D. O. without any condition attached to it and there is no basis for the argument that he was appointed only in an officiating capacity There is also no foundation in the argument of the learned counsel for the respondents that there is no such post as S. D. O. or that the petitioner was appointed to it only in an of coating capacity as Assistant Engineers were not available at that time. Rule 64 of Bombay Public Works Department Manual, Vol. I, at page 20, says. "A division is divided into sub-divisions in charge of sub divisional officers who may be Executive Engineers, Assistant Executive or Assistant Engineers, or where no such officers are available, Overseers. These Officers are responsible to the Executive Engineer in charge of the division for the management and execution of works within their sub-divisions. No sub-division can be constituted in the first instance without the sanction of Government." The provisions of this rule make it clear that Executive Engineers, Assistant Executive or Assistant Engineers are generally appointed 'as S. D. Os. but where no such officers are available then Overseers are also entitled to be appointed in this post. There is no allegation that Assistant Engineers were available at the time when the petitioner was appointed as S. D. O., and therefore his appointment was wrongly made. But one fact is clear that if these persons are appointed to the post of S. D. O., then unless there is a condition attached in the appointment order, they are appointed permanently onlj this post. We have already reproduced the orders of promotion and posting of the petitioner as S. D. O. and there is no condition attached to his appointment. The documents in question do not disclose or indicate that he was appointed at any time in an officiating capacity to this post. On the contrary, from the appointment order, it is perfectly clear that his appointment was substantive and was permanent in the post of S. D. O. This view is also confirmed by another order of appointment of one Mr. Rochirarn dated 15th July 1935. This was shown to us at the hearing by the learned counsel for respondents. Mr. Rochiram was not promoted but posted to hold the charge of another S. D. O. This fact leaves no doubt in our minds that Promotion and postings are two distinct notions. Promotion means that a person is promoted to a particular job though posting and holding charge may mean that the person concerned may have been appointed even for a temporary period. The next question for determination is whether the provi sions of Article 181 of the constitution of the Islamic Republic of Pakistan were followed in the reversion of the petitioner from the post of S. D. O. to that of Overseer at Mirpurkhas During the course of the argument Mr. Sadiq, the learned counsel for the respondents, admitted before us that notice to show cause was given and no opportunity was provided to the petitioner to show cause for his reversion from the post of S. D. O. to that of Overseer. But he contended that this is not a punishment within the meaning of rules 33 and 49 of the Sind Civil Services Conduct, Discipline and Appeal Rules and therefore it should not be treated as reduction in rank. There is no force in this contention. Rule 49 of the Civil Services (Classification, Control and Appeal) Rules, 1930, provides :- "

49. The following penalties may, for good and sufficient reason and as hereinafter provided be imposed upon members of the services comprised in any of the classes (1) to (5) specified in Rule 14, namely :- (1) . . (ii) . . . . . (iii) Reduction to a lower post or time-scale, or to a lower stage in a time-scale. (iv) . . . . . (v)..... (vi) . . . . .. (vii) . . . . . This rule makes it perfectly clear that reduction to a lower post is one of those penalties that can be imposed upon members of the service by way of punishment. The other contention of the learned counsel for the respondents that administrative transfer of an officer from a higher post to a lower post is not reduction within the meaning of - Article 181 of the Constitution is devoid of all force. Reduction in rank means, degradation in rank or status of an officer: Cases of Government employees reduction in rank are daily coming tip for consideration before this Court and there appears to be lot of confusion on this question. It is, however, clear to (is that a reduction in rank whether of a temporary, officiating or permanent employee by way of punishment without necessary inquiry is not only A an infringement of rules 33, 49 and 55 of the Sind Civil Services Conduct, Discipline and Appeals Rules but also of Article 181 of the Pakistan Constitution. This view was taken by a Division. Bench of the Sind Chief Court consisting of Sir George Constantine and Munshi, JJ. in the case of Muhammad Mukhtar Ahmad v Mir Muhammad Hussain (P L D 1955 Sind 70), Constantine, J. then Chief Judge, observed at page 72 :- "But in the present case the applicant was appointed for an indefinite period, and for no particular period. His rank was therefore that of iii officiating Upper Division clerk, and he would normally have continued to officiate in that rank, as he did iii fact for four years. The order reverting him was admittedly passed on ground of unsatisfactory work. Just as dismissal and removal occurring in the said subsection of the Government of India Act are penalties so also we think reduction in rank is a penalty, and in the present case the reduction in rank has been inflicted as a penalty. We consider, therefore, that the duty imposed upon officers empowered to reduce in rank by way of penalty to give an opportunity to the applicant to show cause against an action proposed to be taken against him, has not been carried out." This view is also supported by the decisions reported in the cases of Jatindra Nath Biswas v. R. Gupta, Superintendent of Police and others (A I R 1954 Cal. 383), Kedar T(ath Agarwal v. The State of Ajmer (A I R 1954 Ajmer 22), S. Baldev Singh v. The Government of Patiala and EastPunjab States Union and others (A I R 1954 Pepsu 98) and Sebastian 2'. K. v. State (A I R 1955 Tra-Co. 12). Equally well settled is the rule of law that an officer holding an officiating post can be reverted for administrative reasons, but it will not apply to those cases where an officer or an employee has been appointed to a substantive temporary post. Such posts are of quasi-permanent nature and the employee concerned will continue to hold them as long as they exist. It further appears to us that under Article 181 of the Pakistan Constitution dismissal, removal and reduction in rank of permanent or quasi-permanent employees is not contemplated unless some fault or misconduct of the Civil Servant is proved and the technical requirements of the afore said Article are followed. There is not the slightest doubt that such employees cannot be reduced in rank purely on grounds or rules of policy. Each case has to be determined on its own facts. Judging the facts of this case on the aforesaid principles, it is perfectly clear to us that the petitioner was promoted permanently to the office of Sub-Divisional Officer. The Department as such t could not revert him to the office of Overseer purely on administrative grounds. Moreover, in this case, the petitioner was not demoted purely on administrative grounds. The documents produced on the records clearly established that the petitioner was demoted on account of unsatisfactory work. This amounts to punishment and is likely to stand in the way of the petitioner's promotion in the normal course. Such action could not be taken without complying with the procedure of Rule 55 of the Sind Civil Services Conduct, G Discipline and Appeal Rules and the requirements o Article 181 of the Pakistan Constitution. It is admitted that in the instant case no such procedure was adopted. The impugned orders are therefore illegal and inoperative. For the reasons given above, the petition is allowed. The impugned orders are set aside and it is ordered that the petitioner from 2nd January 1954 will be treated to be holding the post of Sub-Divisional Officer in the Sind P. W. D. This order will, however, not deprive the respondents from taking action against the petitioner after the requirements of Article 181 of the Pakistan Constitution are followed. An appropriate writ containing the above directions will be issued against the respondents. Respondents to pay the costs of the petitioner. A. H. Petition allowed.