P L D 1958 (W (PLP)

INAMULLAH, J.

‑ The petitioner who was serving as Director of Intelligence Bureau, Karachi, since October 1953, on a tenure post for five years, has approached this Court under Article 170 of the Constitution, being aggrieved by an order dated 30th March 1957, whereby his services were placed at the disposal of the Government of East Pakistan on being relieved by respondent

2. The contention of the petitioner being that this reversion of the petitioner from a substantive and permanent post was a reduction in rank, and that this order was passed in violation of the mandatory provision of sub-clause (2) of Article 181 of the Constitution. The facts leading to the present petition, shortly put, are these The petitioner belongs to All‑Pakistan Police Service. In January 1948, the petitioner was officiating as Inspector‑General of Police in the Province of West Pakistan when he was appointed as Deputy Director, Intelligence Bureau, Dacca, by the Government of Pakistan. This being a tenure post, the appointment was for four years. On the expiry of the term he was given extension for a period of one year, and again got a further extension for a period of one year from 9th January 1953, or until such time as a substitute was available, which ever was earlier. Before this period of extension could expire, the petitioner was appointed as Director, Intelligence Bureau, Karachi, on 5th October 1953. The post of Director, Intelligence Bureau, Karachi is a tenure post for five years, as would appear from annexure 'B' of the petition dated 24th April 1952, an order purporting to be on behalf of Government of Pakistan fixing the tenure of certain posts including that of the Director of Intelligence Bureau, Karachi. The petitioner by the Notification dated 13th June 1955 was "appointed substantively to the tenure post of Director of Intelligence Bureau, Karachi, with effect from 6th October 1953, for the period of his career." The petitioner handed over the charge of his appointment as Director of Intelligence, Bureau, Karachi, on 10th April 1957, and his services were placed at the disposal of Govern ment of East Pakistan, as would appear from the Notification dated 10th June 1957. The petitioner did not join the service in East Pakistan, but applied for four months leave to the Government of Pakistan. The Government of East Pakistan granted leave as prayed for by the petitioner, and ordered that on the expiry of the leave he was to be posted as D. I. G. of Police, or similar other post in East Pakistan. The main contention of the petitioner, as already disclosed above, is that the reversion of the petitioner to his parent post in East Pakistan, which is an inferior appointment in all respects, including rank, status and emoluments, from that of Director of Intelligence Bureau, Karachi, which is the senior most appointment in Pakistan, before the expiry of the tenure for which he was appointed, amounts to reduction in rank within the meaning of Article 181 of the Constitution. The petitioner, it is contended, could not be reduced in rank, unless he was given a show‑cause notice within the meaning of sub -clause (2) of Article 181 of the Constitution. In furtherance of this contention it is also alleged that reduction to lower post is apparently under Rule 49 of the Civil Services (Classifica tion, Control and Appeal) Rules, and the same cannot be imposed without complying with the procedure laid down in Rule 55 of the said Rules. In the present case it is maintained by the petitioner that there is violation of the mandatory provision of sub-clause (2) of Article 181 of the Constitution as well as that of Rule 55 of Civil Services (Classification, Control and Appeal) Rules. The petition was filed on 23rd April 1957, and a reply thereto was filed on behalf of respondents in the form of an affidavit dated 8th August 1957 by one Mr. Akhtar Mahmood, Under‑Secretary to the Cabinet Secretariat. It is a short affidavit of 10 paragraphs. A perusal of the affidavit of Mr. Akhtar Mahmood would show that most of the facts disclosed by the petitioner are admitted. The reply by the respondents, however, raised threefold points (1) The petitioner held the post of Director of Intelli gence Bureau, Karachi, at the pleasure of the President, and therefore, he cannot question his reversion to the Province; (2) The tenure of the office of the Director of Intelligence Bureau, Karachi not being fixed by any statutory rule is not a condition of service, within the meaning of Article 182 of the Constitution, and therefore the petitioner is not entitled to invoke extraordinary jurisdiction of this Court ; (3) The reversion to the Province of East Pakistan cannot be deemed reduction in rank, as the same was not by way of penalty for some misconduct but only a routine transfer. The petition came up for hearing before us on 17th Octo ber 1957, and remained part‑heard. On the following day Mr. Fazlur Rehman wanted to file a further affidavit in respect of some of the points that he wanted to raise. Though the request was very belated, we allowed him to file an affidavit in the interest of justice. In the affidavit filed by Mr. Akhtar Mahmood dated 18th October 1957, one more fact has been introduced. It would be convenient to reproduce the relevant two paragraphs of the affidavit of Mr. Akhtar Mahmood. They are as under : "

4. That at the time of his transfer from the post of the Director, Intelligence Bureau, the petitioner was offered a post in the Ministry of the Interior with the ranks and pay of an Inspector‑General of Police.

5. That the petitioner did not accept this offer and after his refusal to serve in the Central Government, the Govern ment had no option but to replace his service at the disposal of the East Pakistan Government." In reply, the petitioner filed his own affidavit, and stated that some doubtful and vague promises were held out to him if he would forego his right to hold the tenure post of Director of Intelligence Bureau, Karachi. The petitioner has filed a letter dated 18th April 1957, addressed to himself, by Mr. Hamid, Joint Secretary, Cabinet Secretariat. This letter contains the offer that was made to him. The most important consideration in this petition is whether there was any reduction in rank or not. Ch. Khaliquzzaman, the learned advocate for the petitioner contended that there was reduction in rank. He contended Khan that reversion of the petitioner to East Pakistan amounted to reversion to his parent post which was an inferior appoint ment in all respects including rank, status and emoluments. He relied on para. 2 of the letter dated 24th April 1950 issued by the Cabinet Secretary, Government of Pakistan Under that para., a person who was appointed to a tenure post was on completion of the tenure, to revert to his earlier post. In this case, though the petitioner had not completed his term of office but as he was reverted to East Pakistan. He was to join the same post which he field before his appointment as Director of Intelligence Bureau. It would also appear from the order of tile Government of East Pakistan sanctioning the leave of the petitioner for four months with effect from 11th April 1957, that on the expiry of his leave he was to join as Deputy Inspector‑General of Police o‑ similar other post in East Pakistan. Moreover, the allegations made in para. 18 of the affidavit of the petitioner that the reversion of the petitioner to his parent post in East Pakistan is inferior appointment to the one he was holding, have not been contro verted in the affidavit filed by Mr. Akhtar Mahmood on behalf of the respondents. I have no doubt that the reversion of the petitioner to his parent post in East Pakistan would be, in fact, a reduction in rank. Mr. Fazlur Rehman, the learned Advocate for the respon dents, raised fourfold contentions in support of his argument that there was no reduction in rank within the meaning of Article 181 of the Constitution. He contended (i) that the reversion of the petitioner, to the Province of East Pakistan was not a reduction in rank, as the rever sion was not by way of penalty for some misconduct ; (ii) that 'reduction' in rank' implies a demotion to some lower post : e.g.. an Inspector‑General of Police may be demoted to the post of Deputy Inspector‑General of Police ; (iii) that the petitioner was holding the post of Director of Intelligence Bureau at the pleasure of the President and the tenure of office of the Director not being fixed by any statutory rule it is not a condition of service within the meaning of Article 182 of the Constitution, and there fore, the reversion of the petitioner did not attract the provision of Article 181 of the Constitution ; (iv) that the petitioner was offered a post in the Ministry of Interior with the rank and pay of Inspector -General of Police, which the petitioner refused. I would consider these points separately. So far as the first contention is concerned that, in order to attract the provision of sub‑clause (2) of Article 181 of the Constitution, the reduction in rank must be by way of penalty for some misconduct, we have given our detailed reasons in Writ Petition No. 35 of 1957 Hikmat Hussain v. Pakistan (P L D 1958 Kar. 1) and in Liaquat Ali Khan (W. P. No. 240/ 1957) that no such condition can be read in the statutory provision regarding "reduction in rank". Mr. Fazlur Rehman was unable to state any rule of construction of statutes enabling us to narrow down the wide import conveyed by the words "reduction in rank" to a narrow meaning that it must be by way of punishment for misconduct so as to exclude the possibility of reduction in rank by arbitrary action of the Executive. We do not see any reason to differ from the view that we have taken in the case of Hikmat Hussain, referred to above. The contention that reduction in rank must be con fined to demotion to a lower post in relation to the one held by the officer concerned, has not much force. The meaning of "rank" as given in the Shorter Oxford Dictionary, Vol. II, is as under A number of persons forming a distinct class in the social scale, or in any organised body ; a grade of station or dignity, an order ; hence a person's social position or standing; high station in society, etc.; social distinction ; a class of persons, animals or things in a scale of comparison ; hence, relative position or status. Mr. Fazlur Rehman's contention, if accepted would narrow down the meaning of "rank" to "relative position or status". I do not think that the "reduction in rank" should be confined to the reduction of a person to a lower status such as reduction‑ of an Inspector‑General of Police to Deputy Inspector‑General of Police. A person can be reduced in rank by being transferred to any other branch of service if it is lower post or office in respect of status, position or emoluments to the one held by him before his reversion. B Reduction in rank is a question of fact, which would depend upon the circumstances of each case. In this connection the rule of beneficial construction of statutes must also be borne in mind "It is said to be the duty of the Judge to make such construction of a statute as shall suppress the mischief and advance the remedy. Even where the usual meaning of the language falls short of the whole object of the legislature, a more extended meaning may be attributed to the words, if they are fairly susceptible of it." (Maxwell, Edn. X, page 68) It is the duty of the Court to interpret the statute in such a way so as to suppress such inventions and evasions which may lead to mischief and may be contrary to the true intent of the legislature. Mr. Fazlur, Rehman has filed a notification which we have marked as Exh. 'X' to illustrate his meaning as to what he meant by "rank". In this notification the ranks of Inspectors‑General of Police, etc., are mentioned. He con tended that the Director of Intelligence Bureau also is a rank as the Inspector‑General of Police, as would appear from para. 2 of the notification. Under this notification there Deputy Directors and Assistant Directors of Intelligence Bureau. It cannot, therefore, be said that the Director of Intelli gence Bureau is not a rank as the Inspector‑General of Police. Moreover, it cannot be said that the petitioner was not occupying a certain position and status while holding the C post or office of Director of Intelligence Bureau. A rever sion from that status to any lower post or office, the capacity being immaterial, would be reduction in rank within the meaning of Article 181 of the Constitution. So far as the third contention of Mr. Fazlur Rehman is concerned, the short answer to this would be that the pro visions of sub‑clause (2) of Article 181 of the Constitution is not dependent upon the rules that may have been framed under Article 182 of the Constitution. The relevant portion of Article 181 of the Constitution reads as "(1) No person who is a member of a Civil Service of the Federation or of a Province, or of an All‑Pakistan Service, or holds a civil post in connection with the affairs of the Federation, or of a Province, shall be dismissed or removed from service, or reduced in rank, by an authority subordinate to that by which he was appointed. (2) No such person as aforesaid shall be dismissed or removed from service, or reduced in rank, until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. A perusal of the above constitutional provision would show that if a civil servant is reduced in rank, whatever the cause may be, he must be given an opportunity of showing cause against the action proposed to be taken in regard to him. The provision is mandatory and imperative, and is not dependent upon any rules that may have been framed under Article 182 of the Constitution. In fact, the rules that may be framed by the President or the Governor, as the case may be, would be subject to the provisions of sub‑clauses (1) and (2) of Article 181 of the Constitution. The rules cannot prescribe that a person can be dismissed from service or reduced in rank by an authority subordinate to that by which he was appointed, or that no show‑cause notice would be necessary under certain circumstances. It may also be mentioned in this connection that the "tenure post" is defined under Fundamental Rule 9 (30‑A) as under :‑ "Tenure post" means a permanent post which an indi vidual Government servant may not hold for more than a limited period. Note.‑In case of doubt, a Local Government may decide whether a particular post is or is not a tenure post. In the present case, keeping in view the definition of "tenure post" as given in the Fundamental Rules, the Govern ment of Pakistan declared the post of Director of Intelligence Bureau as a tenure post and limited its period to five years. It goes without saying that the petitioner was entitled to hold the post for the whole term of five years. He could certainly be reverted but on compliance with the provisions of Article 181 of the Constitution. Mr. Fazlur Rehman, the learned Advocate also raised some other points on consideration of which he urged this Court should dismiss the petition. He contended (i) that the breach of statutory rules does not entitle a servant to a remedy in a Civil Court. (ii) that there is no breach of the constitutional guarantee in the present case and, therefore, no writ can issue ; (iii) that a writ can issue only when there is an absolute legal right and that it is absolutely necessary that it should issue ; (iv) that the writ jurisdiction is to be invoked only when there is no other legal remedy; (v) that it is not in the public interests that the present writ should be granted : (vi) that a writ is not to issue if opposed to general law. It is not necessary to examine these grounds urged by Mr. Fazlur Rehman in detail. It would be sufficient to state that in the present case on our finding that the petitioner has been reduced in rank in violation of the provision of sub‑clause (2) of Article 181 of the Constitution, the peti tioner would be entitled to approach this Court under Article 170 of the Constitution. Disregard of sub‑clause (2) of Article 181 of the Constitution, which is an imperative and mandatory provision, calls for an interference by this Court irrespective of the public policy. I may, in conclusion, mention that the petitioner has alleged in his petition that he was transferred to the Province of East Pakistan without consultation with the Governor of that Province as required by Article 183 of the Constitution, but no point was made out of the allegation by Ch. Khaliq uzzarnan in his arguments before us. We would, for the reasons given above, allow the writ petition with costs and order that the petitioner may be restored to the post of Director of Intelligence Bureau, Karachi or to an equivalent post. A. H. Petition accepted.