1974 PLP 169 (SCMR)

Date of hearing: 17th October 1973. HAMOODUR RAHMAN, C. J.‑This appeal, by special leave, arises out of a judgment of a Division Bench of the former High Court of West Pakistan, Lahore Seat, in a constitutional petition under the writ jurisdiction. The said petition was filed by the respondent, who was initially employed as an Assistant Clerk in the Upper Jhelum Canal Circle, in 1938. He was confirmed in that capacity on 1‑10‑

40. Thereafter, in 1945, he was promoted as officiating Sub‑Divisional Clerk. Then, in 1947, when the permanent cadre of Accounts Clerks in that circle was temporarily increased from nine to ten for clearance of arrears, the said respondent was posted to the above newly created post as officiating Accounts Clerk. After the arrear work was completed, he was deputed to officiate as Revenue Clerk, Gujrat Division. At or about this time, the Upper and Lower Jhelum Canal circles were amalgamated for purposes of administra tive convenience resulting in the increase in the number of posts of Accounts Clerks in the circle as the Lower Jhelum Canal Circle had eleven such posts. In 1948, however, the two Circles of Upper Jhelum and Lower Jhelum were again bifurcated and postings of Accounts Clerks against posts of Revenue Clerks were withdrawn, with the result that the number of posts of Accounts Clerk available in the Upper Jhelum Circle again came down to

9. The question of confirmation of Account; Clerks came up for consider ation in November 1949, and two persons, both of whom were senior to the said respondent, were confirmed. But this order was subsequently reviewed on the 22nd of May 1951, and in supersession of the order of 1949 nine Accounts Clerks were confirmed on different retrospective dates. The question of confirmation of the next batch came up on the 7th of February, 1953, but again the respondent could not be confirmed as he had in the meantime acquired several bad reports with regard to the quality of his work. In fact, he was also debarred by the Superintending Engineer from crossing the efficiency bar, as he had not shown any merit. The said respondent was, however, actually confirmed on 7‑9‑1955 with retrospective effect from 8‑7‑1953. He was not satisfied with this and thought that he should have been confirmed along with the second batch with effect from 1‑4‑1948. He accordingly filed a writ petition to challenge the departmental order being Writ Petition No. 1213 of 1957, but it was dismissed in limine on the 22nd of May, 1958, on the ground that he had been originally appointed against a temporary post and was, therefore, not on probation, as contended by him at that stage. Even after the dismissal of the said writ petition, he continued to agitate the question of his confirmation departmentally and maintained that since he was appointed to a vacancy in a permanent cadre under rule 8 (1) of Para. 7.62 of the Administration Manual (Services) Rules, he should have been automatically confirmed with effect from the date the period of probation provided by the said rule expired, contending that the High Court had dismissed his writ petition on the basis of an incorrect report submitted by the Department. When he did not succeed in getting any relief from the Departmental Authorities, he again came to the High Court in writ jurisdiction by Writ Petition No. 471 of 1960. This time it was contended before the High Court that he was not bound by the dismissal of the earlier writ petition, because the report submitted by Government, on the basis of which the writ petition had been dismissed, was factually incorrect. The High Court accepted this contention and came to the conclusion that justice had not been done to the case of the respondent, because, the Department at that stage had misled the Court by stating that the respondent was never posted against a permanent clear scale vacancy as an Accounts Clerk in the Lower Jhelum Canal Circle. The position was to the contrary. He was in fact posted to a permanent clear scale vacancy, although he was posted in an officiating capacity. Nevertheless, the High Court was of the view that under the relevant rules he was entitled to confirmation on the completion of the period of his probation if the said period was not extended or he was not removed from service. After coming to this view, the High Court also held that the respondent could not complain against the confirmations made in 1949 and 1951, because, none of the nine Accounts Clerks confirmed at that stage were junior to him. The High Court was also of the view shat "the question of the confirmation of the petitioner in the second batch in the year 1953 does not even arise." Yet it held that "he should be deemed to have been confirmed automatically in his turn," and partly accepted the writ petition. There appeared to be an apparent conflict in the findings of the High Court, as it was not clear from what date exactly the High Court thought that he should be confirmed while in fact the Department had confirmed him on 7‑9‑1955 with retrospective effect from 8‑7‑1953. The Government, therefore, came up to this Court for special leave to appeal and special leave was granted to consider whether the rule operated to provide for automatic promotion to a higher post in which a person had only been officiating without the necessity of an order of confirmation by the proper authority. Learned counsel appearing on behalf of the Government in this matter has drawn our attention to the fact that the High Court has evidently overlooked the third confirmation made on 7‑9‑1955 when the respondent was confirmed as Accounts Clerk with e8ect from 8‑7‑1953 by order of the Superintending Engineer No. 8434‑36/1615‑8, dated 7‑9‑1955. He categorically states that his instructions are to place before the Court the Service Book of the respondent in which there is a clear entry to the effect that the respondent is confirmed as Accounts Clerk with effect from 8‑7‑1953 by the order passed on 7‑9‑1955. In this view of the matter, it seems that nothing more requires to be done under the judgment of the High Court, if the High Court was right in its view that the question of confirmation with the second batch on 7‑2‑1953 did not arise in the case of the said respondent. Learned counsel for the respondent states that if this be the correct position and the Department gives a statement to that effect to the Court that he is to be confirmed with effect from 8‑I‑1953, then he ,has no further grievance in the matter. The statement of the learned counsel for the Province of Punjab to that affect is recorded, as also the statement of the learned counsel for the respondent that he has no further grievance in the matter. This, in out view, ends the dispute, and so far as this appeal is concerned, it has become infructuous as there is no longer any dispute between the parties. The Department, it seems, had done what the High Court thought should have been done ; but unfortunately the High Court had not noticed this fact. Had the order of the High Court bean more specific, this appeal would not have been necessary at all. In the circumstances, we dismiss this appeal as having become infruct uous but make no order as to costs. Appeal dismissed.