P L D 1958 Lahore (W (PLP)

The petitioner, Mr. Ata-ur-Rahman Khan, is an officiating Executive Engineer in the Peshawar Canals Division. He was appointed: as Assistant Engineer in the Public Works Department of the North-West Frontier Province on the 1st of October 1947, and was promoted to officiate' as Executive Engineer on the 8th of January 1955. In the North-West Frontier Province there was a joint cadre of the Buildings and Roads Branch and the Irrigation Branch so that officers were transferable from one branch to the other. Some months before the establishment of West Pakistan Province apparently in anticipation thereof, a committee of three officers, consisting of two Chief Engineers and a Deputy Chief Engineer, was formed by the Government to split the department into two separate cadres and to allocate officers to each. The Chief Engineer invited options from these officers, and it appears that seventy-five percent of them opted for the Buildings and Roads Branch. The petitioner is one of the officers who was allocated to the Irrigation Branch against his consent, and he has, consequently, filed this petition for a direction to the Government that he should be allocated to the Buildings and Roads Branch. He has a further grievance namely, that although in August 1955, he was awarded a U. N. O. scholarship for advanced studies in Town Planning and Architectural Engineering, a subject more appropriate to his vocation as an Engineer on the Buildings and Roads side than on the Irrigation side, the scholarship had been withdrawn by reason of his allocation to the Irrigation Branch. He asks for a direction that the Government should adequately compensate him for this loss. This part of the petition, however, has not been argued before us, and the sole question for decision is whether the petitioner's allocation to the Irrigation Branch had affected his conditions of service injuriously. Certain facts which may be relevant to the case will be reproduced here. Up to the date of bifurcation the petitioner's service in the Irrigation Branch has been shown by the department to have been three years, nine months and nine days and in the Buildings and Roads Branch four years, one month and twenty-one days. The order of allocation was issued by the Chief Engineer, P. W. D., North-West Frontier Province, on the 31st of August 1955, (page 31 of the paper book) in a letter to the Deputy Chief Engineer and to all Superintending Engineers, stating that the recommendations of the committee had been accepted by the Chief Minister, who had further directed "that all officers should be informed that he will not pay attention to any appeal now submitted to him". The petitioner has also complained that in allocating him to the Irrigation Branch against his wishes, the Govern ment had acted against the recommendations of the Council of Administration for West Pakistan, (which was presided over by the Governor) and has relied upon the following passage from the report of the Council:- "Separation of Buildings and Roads from Irrigation Branches. The present system should continue till the Chief Engineers of the new Province are able to organise the divisions and circles separately for Buildings and Roads and Irrigation according to the proposed set-up, officers being posted according to their wishes to Irrigation or Buildings and Roads Divisions in the same way as in Sind". To this the reply of the respondents in the written statement is that the recommendations of the Council were based on grounds of administrative convenience and that in any case transfers were to be arranged in such a way that work was not dislocated aid too many officers do not go over to the Buildings and Roads side together. The written statement further says that bifurcation was 'effected in view of the following terms of reference:- (1) Suitability of the officer for the particular service and his aptitude. (2) Equitable allocation with a view to maintaining the desired standard of efficiency in both the services. (3) Experience and training in both Irrigation' and Build ings and Roads. (4) Safeguarding the prospects of future promotion and advancement of the officers concerned. It was stated before us at the Bar by the counsel for the petitioner, and there was no contradiction on behalf of the respondents, that although there were twelve permanent posts in the Buildings and Roads Branch, only nine permanent officers were allocated to it, and although there were nine permanent posts in the Irrigation Branch, the number of officers allocated to it was twelve. This remarkable anomaly has not been explained, but Mr. Mahmood, Assistant Advocate -General, stated that it was proposed to remove it by increas ing the number of posts in the Irrigation Branch. However, we are not concerned just now with any administrative mismanagement, of which this will not, perhaps, be the only instance, or with the suitability of officers for one branch or the other. All that we have to see is whether the petitioner's conditions of service are affected by his allocation to the Irrigation Branch. According to a chart (X/4) which the petitioner has prepared, it would appear that while in the joint cadre he would have been, in the ordinary course, confirmed as Executive Engineer on the 1st of May 1964, the result of his allocation to the Irrigation Branch would be to defer his confirmation until the 19th of May 1965. Similarly, while in the joint cadre he would start officiating as Superintending Engineer on the 15th of April 1975, on the Irrigation side this will not happen until the 12th of July 1977. Mr. Mahmood, however, pointed out that a number of temporary posts had been created which should enable the petitioner to be promoted to the post of Superin tending Engineer on the 19th of May 1965, (see written statement at page 17 of the paper-book) and that in the Build ings and Roads Branch he will have no chance of officiating as Superintending Engineer until the 1st of January 1976. There is, however, no guarantee that these officiating posts will become permanent, and as things stand at present, it is clear that in the ordinary course the petitioner's prospects of promotion are injured by his allocation to the Irrigation Branch. It has not been made clear to us whether these orders have been passed under any authority relatable to the Estab lishment of West Pakistan Act, 1955, and the various orders connected with integration. If they were so passed and the case falls under the Establishment of West Pakistan Act 1955, then section 8, subsection (3) guarantees to all civil servants such terms and conditions as will not be less favour able than the terms sand conditions admissible to them immediately before the 10th of August 1955. A Division Bench of this Court, presided over by one of us, has already held in Writ Petition No. 508 of 1956, that prospects of promotion are included in the terms and conditions of service, and we accept that view. If, however, the decision is to be regarded as a decision taken by the North-West Frontier Province Government before integration, then section 241 of the Government of India Act will be applicable, and rules prescribed in the conditions of service can be made or altered under sub section (2) by the Governor or by some person authorised by him to make such rules. It is objected that the present order was passed by the Chief Minister without reference to the Governor and this objection has not been refuted before us. According to rule 28 of the Rules of Business made by the N. W. F. P. Government under section 59 of the C Government of India Act, "the cases enumerated in Schedule II, Section A, to these rules shall be submitted to the Governor through the Chief Minister for his approval before the issue of orders". Item 30 (ii) of the Schedule is to the following effect:- "Specifying authorities who may frame rules regarding the conditions of service of persons serving in connection with the affairs of the Province". This means that rules affecting conditions of service were to receive the approval of the Governor, and if they have not received it, they would be ultra vires. Conditions of service could be altered only by a rule and the order impugned can at best be regarded as a rule which, having not received the approval of the Governor, is illegal. We find it necessary to issue a direction that the petitioner's service should be so utilised as to make it possible for him to earn his prospective promotion as he would have earned it in the joint cadre. This does not mean that it should necessarily be deferred till that date if unfore seen circumstances intervene and make it possible for him to earn it earlier. We do not issue any direction that the petitioner should be necessarily allocated to the Buildings and Roads Branch, but it would appear obvious, since he cannot earn promotion in due course on the Irrigation side, that Government will find it inconvenient to keep him in one branch and keep an account of his seniority in the other. The petition is accepted with costs. A. H. Petition accepted.