P L D 1963 Dacca 1023 (PLP)

"In pursuance of CTM/CRB's Office order No. 457/2235(T) dated 23‑4‑60 Mr. Mohammad Ullah surplus Markman/CTG (now H. P. man) CTG is hereby absorbed as Markman and posted at DA vice Mr. A. Latif Markman/DA reverted. Mr. A. Latif, Markman/DA is reverted and posted to his former post of Peon. He will report to this Office for duty." The petitioner then joined at Dacca as MARKMAN and continued in the same post in the revised scale of pay of Rs. 60‑

80. The aforesaid letter definitely states that the petitioner was absorbed in the post of a MARKMAN.

3. However, trouble arose when one Md. Shabdal Khan, who was a MARKMAN serving on deputation in the Chittagong Port, was re‑transferred back to his substantive appointment as MARKMAN. This situation was met by an order passed by the Chief Traffic Manager, being O. O. No. 269‑E/69. (Dup) (T), dated 6‑7‑61, to the following effect :‑ " Mr. Md. Shabdal Khan, Markman being spared from CTG Port is hereby transferred and posted under DTS/DA on his same pay and scale vice A. Latif 1, Markman reverted to lower post . . . . " From the above‑mentioned order it is clear that there was no question of the petitioner's relegation to an inferior post of a totally different nature in order to make room for the said Shabdal Khan. The Chief Traffic Manager definitely directed the reversion of one A. Latif to a lower post.

4. It seems that a tug‑of‑war ensued between the Chief Traffic Manager and the D. T. S. concerned. As the order passed by the Chief Traffic Manager was never complied with, we asked the learned Advocate for the respondents to produce any communication which was made to the C. T. M. by the District Traffic Superintendent, Dacca, to obtain a revision of the order quoted above and we were told that no such communication was made.

5. Be that as it may, it is evident that, instead of complying with the aforesaid order, the District Traffic Superintendent, in breach thereof, passed the following order:‑ "In terms of C. T. M. C. R. B's Office Order No. 269‑E/69 (Dup) (T) dated 6‑7‑61 Mr. Md. Shabdal Khan markman being spared from CTG port is hereby posted at Dacca on his, same pay and scale vice Mr. Md. Ullah markman Dacca reverted to his former post of P/Man on Rs. 45 per month in scale Ra, 38 to 45 being junior most unapproved for the post and posted at Mymensingh vice vacancy." Instead of reverting the said A. Latif to a lower post as directed by the Chief Traffic Manager, the petitioner was "reverted" to the semi‑skilled post of a POINTSMAN. It may be stated here that the said order of the D. T. S. Dacca, has been impeached before us.

6. It will be seen that the aforesaid order bears a direct reference to order No. 269‑E/69 (Dup) (T), dated 6‑7‑61, quoted above. The impeached order purports to be made in terms of the aforesaid letter whereas it is patent that the same is completely in breach thereof. The petitioner thereupon made various appeals and representations against his removal and/or reduction m rank to the railway authorities concerned without any result. He, therefore, moved this Court and obtained a rule nisi calling upon the respondents to show cause why a writ of mandamus or an appropriate writ should not issue directing them to cancel, withdraw and/or rescined the impugned order, as stated above.

7. The respondents have filed an affidavit‑in‑opposition in which the material averments in the petitioner's application to this Court have not at all been traversed. The statements made by the petitioner in paragraphs 3, 6, 7, 11, 13, 15 and 19 of this petition have not been challenged. In the said affidavit‑in- opposition the respondents have imported a number of other correspondence and memorandum which do not, in our opinion, have any material bearing upon the petitioner's case before us.

8. At the hearing of this Rule, it was urged on behalf of the petitioner that on his transference to the eastern wing of Pakistan, he was appointed permanently and substantively as a MARKMAN which post was the nearest approximation to the position held by the petitioner in West Pakistan. The petitioner was undoub tedly posted to East Pakistan on an inter‑wing transference due to the convenience and expediency of the Railway administration as he (the petitioner) was a domicile of East Pakistan. He was a confirmed GOODS MARKER in West Pakistan and he had to be given an equivalent position in this wing. His post appears to have been equated to that of MARKMAN in East Pakistan, although the post of MARKMAN was a Class III appointment whereas the position of GOODS MARKER was a Class IV post in the higher rung of that class. The petitioner could not be given a lower appointment to that held by him. He was given a similar job in East Pakistan although in a higher class on a some what higher scale of pay. This was dictated by the necessity of the case. Our attention was drawn to the offer made on behalf of the Railway to the petitioner and his acceptance as such. We shall again refer to the communications which passed between the petitioner and the Railway Authorities hereafter.

9. Learned Advocate for the petitioner has drawn our attention to the admitted fact that the nature of work done by a GOODS MARKER in West Pakistan is substantially the same as done by MARKMAN in East Pakistan and that there is no post of GOODS MARKER in East Pakistan as such. This has been accepted by the respondents in their affidavit‑in‑opposition filed before us. It was contended that the petitioner was uncon ditionally appointed as a MARKMAN in a substantive capacity. Furthermore, it was contended that the scale of pay to which the petitioner was appointed, that is, from Rs. 40‑60, was also unconditional. The only condition which was attached to his service in East Pakistan was that his seniority was subject to final adjustment on a certain basis. In the aforesaid premises, the petitioner's contention is that having been appointed substantively to the post of MARKMAN in East Pakistan on a scale of pay from Rs. 40 60, he could not be relegated to the post of POINTS MAN which had no nexus with the position which he held either in West Pakistan or in this wing and which carried a lower salary in a lower class. It was, therefore, contended that the impugned order amounted to removal from his substantive appointment or at least to a reduction in rank within the meaning of section 240 of the Government of India Act, 1935 or Article 181 of the late Constitution. As admittedly the petitioner was given no opportunity to show cause against such removal or reduction in rank, it was submitted that the impugned order was illegal and void.

10. Mr. Hamidul Huq Chowdhury, who appeared for the respondents before us, did not contest the proposition that if the impugned order amounted to a removal of the petitioner from his substantive appointment or a reduction in rank as stated above, the respondents had no case and that the petitioner's contention must be accepted. He has, however, contended that the appoint ment of the petitioner as MARKMAN was provisional and conditional and not a substantive appointment. He, therefore, argued that; in the aforesaid circumstances, the impugned order could not be said to be a removal or a reduction in rank as main tained by the petitioner. He has sought to interpret the 1etter of appointment. of the petitioner as MARKMAN and his acceptance thereof as a provisional and conditional appointment which conferred upon the petitioner a precarious tenure of service with the risk of being thrown away whenever the respondents found it expedient to do so. We would, therefore, quote again the letter itself, being No. 939‑E/82/P‑2, dated 14‑11‑57, which reads thus: " . . . . . He will be designated as markman on E. B. Rly. in pay scale 40‑2‑60 and his seniority will be determined on the basis of his position relative to the staff of E. B. Railway as stood on 14‑8‑47 and according to rules in force on E. B. Railway . . . . . "

11. The aforesaid letter constitutes the offer which was made to the petitioner on his transference to this wing and this letter has to be read along with a previous letter, bearing reference No. 937‑E/‑;05 (EV), dated 19‑6‑57, addressed by the General Manager, North Western Railway, Lahore to his opposite number in East Pakistan. The aforesaid offer was accepted by the petitioner.

12. Upon a proper construction of the offer and acceptance, there can be no manner of doubt that the petitioner was substan tively appointed to the post of MARKMAN in East Pakistan for the obvious reason that the said post was the nearest equation to the post he held in West Pakistan having regard to the nature of his work in his former appointment. There was nothing dubious about the cost which was offered to him. Similarly there was nothing dubious about the scale of pay as well.

13. It is thus clear that the appointment of the petitioner as MARKMAN was not conditional or provisional or temporary. The scale of pay of Rs. 40‑2‑60 was similarly unconditional. What was conditional was the seniority of the petitioner as MARKMAN, inasmuch as the aforesaid letter did not specifically state as to what was the exact position of the petitioner in this behalf, but left that matter to be determined on a subsequent adjustment in accordance with the position of the petitioner with reference to the staff of the E. B. Railway as it stood on 14‑8‑47 and in accordance with the rules in force. Mr. Hamidul Huq has argued that since the appointment of the petitioner as MARKMAN was itself of temporary nature and that since it was a provisional appointment, the petitioner could not claim to have acquired a substantive right to such appointment.

14. Mr. Hamidul Huq Chowdhury has tried to support his arguments by a line of reasoning which seems to have found favour with the District Traffic Superintendent and which runs thus : The scale of pay of a GOODS MARKER in West Pakistan, namely, Rs. 38‑45, was the same as that of a POINTSMAN in East Pakistan and both are Class IV appointments. The post of a MARKMAN in East Pakistan belongs to the higher category of Class III. Therefore, the transference of the petitioner to the post of a POINTSMAN is a "reversion" to his former post. The fallacy of such a process of reasoning is obvious. The post of a POINTSMAN may have the same scale of pay as that of pay as that of the former post held by the petitioner as GOODS MARKER, but the two posts are as different as the poles as under. The former is a quasi‑technical and semi‑skilled post and the latter is not so.

15. It is said that the post of MARKMAN belongs to the category of Class III and the petitioner's substantive appointment of GOODS MARKER in West Pakistan was a Class IV service. And so it was; but the question is what was the post to which the petitioner was appointed in East Pakistan on an adjustment consequent upon an inter‑wing transference of service as a measure of administrative convenience and expediency? The duties and the nature of work of a GOODS MARKER in West Pakistan are the same as those of MARKMAN in East Pakistan. If the petitioner had to be given in East Pakistan the same work and the same duties which he used to perform in West Pakistan, he had to be given a corresponding post in this wing and the corresponding post here in East Pakistan was that of a MARKMAN. We have already noted that in East Pakistan there is no such post as a GOODS MARKER. The opposite number to a GOODS MARKER in East Pakistan was a MARKMAN. In all fairness the petitioner had to be offered the post of a MARKMAN. It is true that the post of a MARKMAN in East Pakistan appertains to a higher Class, namely, Class

111. It is also true that the scales; of pay of MARKMAN is higher, namely, Rs. 40‑60 (subsequently raised to a scale of Rs. 60‑80 on the recommendation of the Pay Commission). But, the service adjustment necessitated the petitioner's appointment to the post of MARKMAN and, in fact, as we have found above, the petitioner was so appointed as MARKMAN. It was no longer open to the D. T. S., Dacca to re‑open the question of the petitioner's appointment and to relegate the petitioner to a totally different post, although carrying the same scale of pay as that which he had enjoyed in respect of his former post in West Pakistan. The matter was finally concluded upon the offer made to the petitioner and his accep tance thereof. It is true that upon his transfer to East Pakistan, the petitioner obtained an advantage both in respect of the Class of his service as also with regard to his scale of pay. But the fact remains that such an advantageous position was offered to him and was accepted by him.

16. Mr. Hamidul Huq had next argued that the impugned order amounted to a retrenchment on surplus age and he tried to elucidate his point by saying that, inasmuch as there was a surplus age in the cadre of MARKMAN in the Pakistan Eastern Railway, the petitioner had to be removed from the post of MARKMAN as a matter of imperative necessity and not as a punishment. The simple answer to this argument is that the respondents have not made a case to that effect in their affidavit -in‑opposition. Nowhere it has been stated therein that, having regard to the total number of sanctioned appointments as MARK MAN in the Pakistan Eastern Railway, there was no vacancy available for the petitioner. In fact, this matter was settled by correspondence between the Western and Eastern Railway prior to the inter wing transference of the petitioner. It was definitely against a vacancy as MARKMAN that the petitioner was posted as such. What has been stated in the said affidavit‑in -opposition is that at some particular point of time the petitioner was treated as being a surplus MARKMAN in a particular district of the P. E. Railway and snot vis‑a‑vis the total strength of MARKMAN in the railway service in East Pakistan. When the petitioner was initially posted to Pahartali, it was found that there was no vacancy there. He was then posted to Dacca. At Dacca the D. T. S. by the impugned order tried to appoint somebody else in the post held by the petitioner by shifting him elsewhere. In these circumstances the use of the word "surplus" is a misnomer. It has not been shown with reference to the total sanctioned strength of the posts of MARKMAN in the Province that the petitioner's post had become redundant.

17. It is also a misnomer to describe the petitioner's posting as POINTSMAN to be a "reversion" inasmuch as the petitioner had, at no point of time, previously held an appointment as a POINTSMAN. We have already noticed that the post of a POINTSMAN is a quasi‑technical and semi‑skilled appointment, whereas the post of GOODS MARKER or that of a MARKMAN is purely non‑technical. One fails to find any connection between the two appointments or any similarity between them. If the scale of pay of an Engine Driver had been the same and the class of service had been the same as those of a GOODS MARKER, could it be said that the petitioner was "reverted" to his former post if he had been appointed as an Engine Driver? A grievance has been made of the fact that the petitioner failed to qualify himself as a Pointsman. True he failed to train himself as a Points man but, was it fair to require him to do so? However, such a decision is not at all pertinent to the point in issue.

18. It has been argued that the removal of the petitioner from the post of Markman was necessary upon a final adjustment of his seniority as such. Such a case was neither made out in the affidavit‑in‑opposition nor is it supported by the records of this case as presented to us. The respondents have carefully avoided the presenting of a complete picture on a province‑wide basis. On a rather naive argument it was sought to be shown that in the district of Dacca, if somebody who was supposed to be senior to the petitioner in that district was retained in the post of a Markman, there was no room for the petitioner's continuance in that post. Moreover the petitioner's seniority was calculated from 1958 and not from 1947. Such a calculation on 1958 basis was wholly unjustified. It was against the terms of his appointment as Markman. The offer which was made to petitioner and accepted by him, is stared in Memorandum No. 939‑E/82/P.2 dated 14‑11‑57 and the question of his seniority is specified in the following terms: "His seniority will be determined on the basis of his position relative to the staff of the E. B. Railway as it stood on 14‑8‑47." The phrase "relative to the staff of the E. B. Railway" must in the aforesaid context mean "relative to the staff of Markman in the E. B. Railway." Lt cannot mean relative to the entire personnel of the E. B. Railway on 14‑8‑47, including all the posts in E. B. Railway from that of a peon to that of the General Manager. Nor can it mean "relative to the staff of the E. B. Railway having regard to all such posts as had a scale of pay of Rs. 38‑60, no matter what those posts were, whether technical or non‑technical." This method of calculation was also against the express order of the Chief Traffic Manager as per Memorandum No. 547‑E/2235 (T), dated 23‑4‑60 which specified the petitioner's seniority in the following terms :‑ "His seniority as Markman should be determined from the date of his posting as Goodsmarker on N. W. Railway. The petitioner was confirmed as Goodsmarker in 1947. Thus, according to the order of the Chief Traffic Manager as quoted above, the petitioner's seniority as Markman will run, at least, from 1947 and not from 1958. It is, therefore, patent that the petitioner's seniority was left to be determined on the footing that he was appointed as markman in the E. B. Railway on 14‑8‑

47. Such was the offer made to the petitioner and it was so understood and construed by the Chief Traffic Manager.

19. In any event, the impugned order cannot be treated as a measure of retrenchment on ground of surplus age for reasons which we have already set oat acid discussed above. A compre hensive picture in respect of the total sanctioned strength of Markman in the Pakistan Eastern Railway has not been given in this case; nor does it appear from the records produced before us.

20. It was pointed out that the petitioner was not given any further increment for some time. We do not know why this was done, but this fact will have no bearing on the question as to what post was offered to the petitioner and accepted by him.

21. We hold that the impugned order purporting to "revert" the petitioner to the post of a Pointsman amounts to a removal and/or a reduction in rank as contended by the petitioner.

22. This disposes of all the points which were canvassed and mooted before us. No other point was pressed.

23. The result, therefore, is that, for reasons stated above, the rule is made absolute and the respondents are directed to cancel the impugned order, dated the 22nd of July 1961, purporting to revert the petitioner to the post of POINTSMAN in the Pakistan Eastern Railway. The petitioner is entitled to the costs of his application, which we assess at ten Gold Mohurs. SALAHUDDIN AHMED, J.‑‑

I agree. S. B./K. B. A. Petition accepted.