P L D 1959 Supreme Court (Pak (PLP)

By a subsequent letter dated the 13th January 1956, all the six posts appertaining to the Karachi Police were placed on a permanent footing and five temporary posts, of which one was a post of Superintendent of Police and four were posts of Assistant Superintendents of Police, were added. The designation of the senior‑most post in the Karachi Police was still retained as Inspector‑General/Deputy Inspector‑General of Police". It is this post with which the present case is principally concerned. Mr. Khundkar assumed this post on the 31st August 1956. The relevant notification appeared in the Gazette of Pakistan dated the 5th October 1956, under date line "Karachi the 25th September 1956," and the portion relating to Mr. Khundkar read as follows:‑ "Mr. F. R. Khundkar, P. S. P., on deputation from the Government of East Pakistan took over as Inspector‑General of Police, Karachi in the forenoon of the 31st August 1956". By the date on which Mr. Khundkar took over charge of the office of Inspector‑General Karachi, that post had been made permanent, as will be clear from the references to Government orders made above. The question of the exact nature of this post and the salary sanctioned for it has received lengthy treatment in the judgment under appeal. The facts were stated before us by the learned Attorney‑General, and since they must be accepted on the basis of orders made by the Government, they may be found without difficulty. It seems to be perfectly clear that the post of Inspector General of Police Karachi is not to be equated with the posts carrying the same designation in the Provinces of East Pakistan and West Pakistan. Bearing in mind the impossibility of comparison between the great areas of these two Provinces, and the very small area comprised in the Federal Capital, it is not unreasonable to find that this post ordinarily carries a sanctioned salary equivalent to that of a Deputy Inspector‑General in the Provinces aforementioned. It may be for reasons of prestige or it may be for other reasons that the designation Inspector‑General of Police has been applied to it, but it is clear from the order of the 1st April 1953, that the person at the head of the Karachi Police may, at the option of the Central Government be designated either as Inspector‑General or Deputy Inspector‑General, without affecting the nature and quality of the post. Mr. Khundkar was described as Inspector‑General, and it is also on the record that upon his insistence the salary of the post was raised, so long as he occupied it, to that of an Inspector‑General. We do not concern ourselves here with the question whether, if the Central Govern ment chooses to designate the officer appointed to be head of the Karachi Police as inspector‑General, it must follow that he should be allowed the salary admissible to an Inspector‑General of Province. It may be that the rules permit of the high designation of Inspector‑General being applied for honorific purposes while the salary paid might be that of a Deputy Inspector‑General. In the case of Mr, Khundkar however, arid from the outset the salary which he got was that appropriate to an Inspector‑General of police in the major Provinces. The question was raised before the High Court, on behalf of Mr. Khundkar, that the post of Inspector‑General of Karachi was a "tenure post", and he relied for this purpose upon a letter issued to the Chief Commissioner of Karachi by the Government of Pakistan on the 22nd September 1954, which conveyed the decision of the Central Government to prescribe the periods of tenure of certain posts in the Karachi Administration, one of those being the post of Inspector‑General of Police, Karachi, for which the tenure was fixed at four years. The point was raised on behalf of Mr. Khundkar, in order to assert his right to remain in the post for a full period of four years, subject to earlier retirement. The learned Judges of the High Court discounted the value of the letter of the 22nd September 1954, on the following grounds, namely, firstly that it was not issued with the approval of the Governor‑General, secondly, that it was not notified in the Gazette, thirdly that it appeared to be a departmental arrangement, and fourthly that at the time in question the post was still a temporary post. Therefore, they declined to hold that the post was a tenure post. The view taken on this point by the learned Judges is clearly open to question. There seems to us to be no reason why the letter of the 22nd September 1954, should not be sufficient authority for holding that the posts mentioned therein had been designated as "tenure posts". The grounds stated in the judgment of the High Court do not appear to us to carry any weight against that which must be allowed to the letter as an official communication at the highest level. Holding however that the post of Inspector‑General of Karachi was a "tenure post", it is nevertheless impossible to find that this fact gave Mr. Khundkar a right to hold the post for the period of the prescribed tenure. For, the expression "tenure post" as defined by Fundamental Rule 9 (30‑A) is "a permanent post which an individual Government servant may not hold for more than a limited period". The meaning of the expression was considered very recently by this Court in the case of Mr. M. H. Khan (P L D 1959 S C (Pak.) 13), decided on the 8th December 1958), where it was held by the majority of the Judges who heard the case that by definition, a tenure post is one which ` cannot be held for more than the prescribed period without an order of extension; it is not to be understood to mean a post which is to be held for the period prescribed, once the appoint ment is made. Therefore, Mr. Khundkar's case does not gain any strength by reference to the post of Inspector‑General of Karachi having been designated as a "tenure post", and the period of the normal tenure having been prescribed as four years. Before the High Court, Mr. Khundkar had moved a petition for a writ to cancel an order of the Central Government dated the 18th January 1958, in the following terms:‑ "The services of Mr. F. R. Khundkar P. S. P. Inspector‑General of Police, Karachi are replaced at the disposal of the Government of East Pakistan with immediate effect". The learned Judges granted the writ in the terms already men tioned. In the course of coming to the conclusion that by the order reproduced above, Mr. Khundkar had been reduced in rank, the learned Judges recorded a number of findings from which we select the following for mention here:‑ (1) They were clearly of the opinion that the post of Inspector -General of Police, Karachi was a permanent post, which "was in existence at the time of the appointment of the petitioner". (2) By the change in the scale of pay attached to the post, during the incumbency of Mr. Khundkar, the post did not become a temporary post or a special post in the nature of a temporary post. (3) Mr. Khundkar's appointment "was on a permanent post for an unlimited period subject to retirement on reaching the age of superannuation or on other grounds on which a permanent Government servant can be retired". (4) Although "the President has absolute power to transfer a public servant from one place to another place" yet, by the order replacing Mr. Khundkar's services at the disposal of the East Pakistan Government, where there is only one post of Inspector‑General of Police, which is already occupied per manently, the position has been created that the highest post which the East Pakistan Government will be able to offer to Mr. Khundkar is the post of Deputy Inspector‑General of Police and consequently Mr. Khunkar "cannot be absorbed in an equivalent post" to that which he was holding in Karachi. This involves a reduction in his rank, within the meaning of Article 181 of the Constitution of 1956, and cannot be ordered unless a notice to show cause against such action has first been given to Mr. Khundkar. His record of service is excellent and reduction in his rank "cannot be justified on administrative and circumstantial necessity". There can be no question that Mr. Khundkar was appointed to a permanent post, designated, at least for him, as Inspector- General of Police, and carrying the salary of an Inspector‑General of Police, when he was appointed and took over charge as Inspector‑General of Police of Karachi, in August 1956. We agree with the learned Judges that the orders fixing a grade of pay special to Mr. Khundkar do not detract from the permanence of the post which he assumed in Karachi. We have ahead, indicated our view that the post was a "tenure post", bull that did not give Mr. Khundkar any assurance that he would occupy it for any particular period. On the contrary, the effect of the designation is to ensure that in the absence of an order of extension, no incumbent shall occupy such a post for a loner period than that prescribed. The major part of the judgment of the High Court is con cerned with the question whether the post in question was temporary, and even if this was the case, whether the terms of Article 181 f the Constitution of 1956 were applicable to it. On the finding that the post was a permanent post the entire discussion of this question was hypothetical, and (we say so with due respect) unnecessary for the disposal of the case. The point which the learned Judges appeared to have overlooked completely is that the post was a deputation post. It was designated as such in the principal order fixing a cadre strength of officers of the Police Service of Pakistan. Provision for officers of this Service belonging to the East Pakistan cadre to be made available for such deputation is contained in the cadre strength appropriated to the East Pakistan Province. Therefore, there need not be the slightest doubt that when Mr. Khundkar's services were made available for use by the Central Government, he automatically came within the posts provided for deputation to the Centre. At Karachi, he occupied a post which was expressly designated as a deputation post. There is no separate cadre of officers of the Police Service of Pakistan, assigned for employment at Karachi. There is what is described in the letter of the 1st April 1953, as a "cadre strength", but this is composed exclusively of deputation posts. Rank within this group of officers serving in Karachi may be discerned in the orders by which the posts are created, at the head being an Inspector‑General or Deputy Inspector‑General, who is followed by a number of Superintendents and under the latest orders, by four Assistant Superintendents. That however, is not the rank the loss of which formed the foundation of the order of the learned Judges. Nor is it a matter of rank within the cadre of officers of the Police Service of Pakistan assigned to East Pakistan. Mr. Khundkar's rank in that cadre remains unaffected by the order in question. The question may then be asked how is it possible to conceive of the loss of this deputation post at the Centre, as involving for Khundkar a reduction in rank? If the Police Service of Pakistan were organised on an All‑Pakistan basis, and the post of Inspector General of Police of Karachi were one of the posts to which officers of the Service, wherever they might be serving, could aspire, in the normal way, then indeed it might have been thought that by being deprived of the post of Inspector-General of Karachi, and being put in such a position that he would be bound to accept a post of Deputy Inspector‑General either at Karachi or elsewhere in Pakistan, an officer would be faced with a reduction in rank. For in that case, he would be losing his place in a single cadre made up of individuals belonging to a single Service, who are placed in relation to each other, on an ascending scale for purposes of preference or promotion, in a certain specified order divided, perhaps, into a number of grades. But that is not the case. No person belonging to the Police Service of Pakistan, and being assigned to one of the two Provinces of Pakistan can, as of right, claim appointment to the post of Inspector‑General of Police at Karachi, or indeed to any other of the eleven posts comprised in the "Deputation Posts at the Centre" which are open only to officers of that Service. In order to gain appointment to one of these posts, it is necessary that the officer appointed should be deputed for the purpose, and it is clear that deputation of an officer belonging to a Provincial cadre involves firstly, the' selection of that officer by the Central Government, and secondly, the consent of the Provincial Government, to whose cadre he belongs, being given to his relinquishing temporarily his service in the Province and assuming for the time being duties at the Centre. It was admitted before us to be the case, and indeed it is a matter of practice and common experience, that officers of the Provincial cadres deputed for service at the Centre are frequently recalled to their Province, by the Provincial Government, in the exigencies of the public service. Against such a recall they have no right of any kind to object, being substantively officers of the Provincial Government and only on deputation to the Centre. The mere fact that they may be holding at the Centre a post higher in rank than that to which their place in the Provincial cadre entitles them in the Provincial Service does not constitute the least bar to the making of an order by the Central Government at the request of the Provincial Government, replacing the services of such an: officer at the disposal of his parent Government. It is sufficiently clear from this that where an officer of a Provincial cadre is occupying on deputation, a post in the central Government, he does not acquire any right in himself to hold that C post. The right which he can claim to be vested in himself, is a member of his Service, is to be given a post appropriate to his grade in the Province to which he belongs. His occupation of, the post at the Centre is at the option of the Central Government, and subject to the consent of the Provincial Government. Such posts are fairly often designated as "tenure posts", a maximum period of incumbency being prescribed in the public interest, perhaps in order that the services of such officers should not be lost to their parent Provinces indefinitely, or perhaps in order that no officer should make, as it were, a monopoly of a particular post in the Central Government. However. that may be, what appears to us to be undeniable is that when a post is a deputation post, the occupant of that post being a person holding a substan tive rank in his Service, relatable to a different territory and Government, he does not gain by such occupation any vested right to retain that post contrary to the wishes of the Government under which he is serving in that post, or to the wishes of his own parent Government. We therefore find it impossible to support in any .respect, the conclusion reached by the learned Judges in the High Court that Mr. Khundkar's appointment as Inspector‑General of Karachi was "for an unlimited period subject to retirement on reaching the age of superannuation or on other grounds on which a permanent Government servant can be retired". Indeed, we are unable to see any grounds arising out of the materials placed before the learned Judges in the case upon which such an absolute pronounce ment, clearly calculated to paralyse the control of the Governments concerned over an officer employed on deputation, could possibly have been made by them. Conceivably, such a dictate might be issued to a Government by some supra‑governmental authority, yet it could not be made except after a careful examination of a large number of factors affecting the public interest, of which one of the most important would be the suitability of the officer for the requirements of the particular post, which might themselves be subject to change. Mere considerations of seniority, or equivalence of posts etc., cannot be the governing factors in making selections for an appointment the nature here in question. The selection of an officer who, by ability and character, is suited for the difficult task of maintaining law and order in the Federal Capital of a great country, is a, task requiring judgment of a high order. It cannot be performed in the manner adopted by the High Court, purely on the basis of injury or advantage to the officer concerned. The functions of the High Court do not include, and the experience possessed by its Judges do not adapt them for, the exercise of judgment in matters of this kind. It is a field in which interference with the judgment of those to whom the task properly appertains, is fraught with grave danger to the public interest. For these reasons we allow this appeal and direct that the writ issued by the High Court to the Government should be recalled. In view of the fact that Mr. Khundkar's contentions had gained the support of the High Court, we make no order as to the costs of this appeal, but we direct that costs in the Nigh Court shall also be borne by the parties themselves. K. B. A. Appeal accepted.