P L D 1966 Supreme Court 78 (PLP)

Below this are appended two Schedules headed Schedule "A" and Schedule "B". The post of Assistant Way Inspector is included within Schedule "B" and not within Schedule "A" It appears that originally this provision in the Agent's Circular of 1927, contained only one Schedule, but by a correction slip issued on the 6th of April 1941, the common Schedule was replaced by two Schedules "A" and "B" and the language of the provision was also modified accordingly. The learned Judges of the High Court have observed, in the course of their judgment, that they were not shown that this provision in the Agent's Circular had two Schedules appended to it at the relevant time. As the respondent's appointment to the post of Assistant Way Inspector, on his own. showing, took place in 1942, it is clear to us that the changes introduced in 1941, were applicable to him. This had been pointed out even in the remand order passed by this Court on the 23rd October 1963. It is surprising that the High Court failed to discover the two Schedules under this provision which governed the case of the respondent. This was the position with regard to appointment of non gazetted staff to which, undoubtedly, the respondent belongs. In respect of disciplinary matters, however, the relevant provisions were those contained in Appendix "G" to Agent's Circular No. 1 of 1936, which, by subsequent revision, has become Appendix "G" to Advance Chapter No. 5, of the Personnel Manual of the Railway. In the third column of this Appendix are given the names of officers that are competent to impose certain penalties on the staff mentioned in the first column. In respect of the Way and Works Branch, the third column contains the entry "Superintendent of Works and Senior Scale Officers". The heading of this third column, however, shows that the officers' mentioned below it, have full powers, ‑ except for infliction of penalties Nos. (4), (5) and (8), for "Classs III staff controlled by Headquarters Office". We are concerned here with penalty No. (8) which is that of removal from service. If, therefore, the respondent could be said to be a member of "Class III staff controlled by Headquarters Office", a Senior Scale Officer, such as the Divisional Engineer undoubtedly was, could not have imposed the penalty of removal from service, on the respondent. The Federation, however, relied on Note' (7) to this Appendix "G" in Advance Chapter 5, which had been inserted therein by correction slip No. 6 dated 19‑5‑1953 and is couched in the following terms:‑‑ "Note (7).‑The term "Class III staff controlled by Head quarters Office" used in the third column of the heading of the Appendix, refers to the staff detailed in Schedule "A" under para. 2 of Agent's Circular No. 1 of 1927. Part "A" (revised 1937) which is now being revised as Advance Chapter No. 1 of Personnel Manual." If this Note governs the situation, it would be clear that the phrase "class III staff controlled by Headquarters Office" occurring in the heading of Appendix "G", would have a restricted and technical meaning, and would apply only to the staff which is included in Schedule "A" under para. 2 of Agent's Circular No. 1 of 1927 (revised 1937). As the respondent's name is included in Schedule "B" rather than in Schedule "A" of that Circular, in his case, if the Note applies to him, he would be removable from service by a Senior Scale Officer. The respondent's contention was that this Note (7) to Appendix "C" was not applicable to him as it was brought into force in 1953, whereas he had been appointed to the post in question, in 1942. As noted by us in our previous remand order, however, a perusal of papers produced by the Railway authorities revealed that even on the 6th of August 1941, prior to the appointment of the respondent as A. W. I., the position was the same. The Schedule of powers in Appendix "G" as it then existed, contained the following entry in the third column of the heading:‑ "Full powers, except Nos. (4), (5) and (8) for subordinate staff detailed in Schedule "A" of para. 2 of Agent's Circular No. 1 of 1927, Part "A" (Revised 1937)." It was pointed out by us in that order, therefore, that even in 1942, two Schedules existed in the relevant Circular of the Agent, and as the post occupied by the respondent, fell within Schedule "B" thereof, he was technically not a member of "Class III staff controlled by Headquarters Office", within the meaning of this phrase as it occurred in Appendix "G". The respondent also attempted to put forward the fantastic suggestion that this Note (7) to Appendix "G" was manufactured by the Department to cover his case specially. This suggestion is grounded on the fact that the relevant correction slip bore the No. 5 whereas there appeared in the same Manual, another correction slip bearing No. 5, of the same date. The correct number of the correction slip which inserted Note (7) is 6 and not 5 and this was the number referred to in our remand order. If; at all, there was a printing error in this case, it does not affect the validity of the correction slip. It follows, therefore. that the removal of respondent from service by order of the Divisional Engineer who was Senior Scale Officer, was in accordance with the provisions of Appendix "G". The main contention, however, raised by the respondent is that an authority subordinate to the appointing authority, could not remove him from service and, in his case, by virtue of Agent's Circular No. 1 of 1927, Part "A", (revised 1937), his was a post that could be filled only on advice from the Headquarters Office which maintained lists, of suitable candidates for the purpose. It was, therefore, his case that the Headquarters Office was the "appointing authority" for this post. The learned Judges of the High Court have also relied, in this context, on the fact that in rule 7 (a) of section IV, it‑was laid down that "instructions will be issued by the Headquarters Office concerned as to what appointments and promotions may be made" and that the orders of appointment or promotion in each individual case will then be issued by the competent authorities. Reference, was also made by the High Court to Note (1) of this rule which runs:‑ "Authorities competent to make promotion to posts controlled by the Headquarters Office are, however, authorized to make officiating promotions against such posts in the leave vacancies up to a period of six months provided qualified men are available within their own jurisdiction." The learned Judges, therefore, drew the inference that the posts enumerated in Schedules "A" and "B" of rule 1, section II, were controlled by the Headquarters office which was virtually the appointing authority in respect of them. Consequently, it was held that Divisional Superintendent was not authorized, as a Senior Scale Officer, to direct the removal from service, of the respondent. This Court had occasion to consider somewhat similar situations arising in two cases reported as Zafar Ali v. The State (P L D 1962 C 320 and S. Qamar Ali Shah v. The State ( P L D 1965 S C 50) In both cases, the question was whether sanction for prosecution of the official in question, had been accorded by the competent authority which could not be an authority below the appointing authority. In the first case, sanction for the prosecution of Zafar Ali (who was a temporary Overseer in the P. W. D. Rehabilitation Circle, Okara) was given by the Superintending Engineer, for an offence under section 5 (2) of the Prevention of Corruption Act II of 1947. The contention raised on behalf of the appellant, Zafar Ali, was that under the rules, an overseer could be appointed only by the Chief Engineer and that in fact the appointment, in his case, was made by the Chief Engineer and therefore the sanction granted by the Superintending Engineer, was of no avail for proceedings against him. It was found that members of the subordinate engineering service were to be appointed to substantive posts by the Chief Engineer, but that temporary overseers, such as Zafar Ali was, were not members of the subordinate engineering service. The rules pertaining to that service did not therefore apply to his case. The provision contained in para. 1.7 of the Public Works Department Code, which provided that the authority for appointing temporary engineering subordinates was the Superintending Engineer, was pertinent in his case. The actual procedure adopted for the appointment of Zafar Ali, however, was that the Chief Engineer made selection, out of the students who had passed the examination in the Government Engineering School at Rasul, of the requisite number of officials who were to be appointed, and forwarded their names to the Principal of the Government Engineering School for information to the students, and to the Superintending Engineer for the requisite appointment orders to issue. The selection was therefore apparently made by the Chief Engineer himself. The posting orders were then issued by the Superintending Engineer through the Principal of the Engineering School. The contention was put forward, on behalf of Zafar Ali, that the Chief Engineer should be regarded as the authority that had made the appointment and that the Principal and the Superintending Engineer had merely issued formal orders under his directions and in obedience to his instructions. This fact, however, was held not to take away from the position that actual appointing authority was the Superintending Engineer who had issued appointment orders and had posted the officials concerned, to various places, in consultation with the Principal of the Engineering School. It was observed in that case that the Chief Engineer may give directions to a subordinate of his, to make an appointment, but that if that subordinate has authority otherwise to make the appointment, it will still be deemed to have been made by him and not by the Chief Engineer. In the case of S. Qamar Ali Shah who occupied the post of a Head Constable substantively, an order had been passed by the D. I. G. Police, Rawalpindi Range, promoting him and others to officiate as Assistant Sub‑Inspectors of Police, till further orders. There was an endorsement below the order, saying that a copy was being forwarded for information and necessary action to all S. Ps., in the Range, with the direction that necessary Gazette notifications should be issued by them. The formal order of promotion was, therefore, gazetted under the signatures of the S. P. Apparently, Head Constables who were considered fit for promotion to be A. S. Is., had their names brought on a list called list "D", maintained in each district: There was rule 13.4 of the Police Rules, which authorized a Superintendent of Police to make officiating promotion to the rank of Assistant Sub Inspector, among other things. Sub‑rule (3) of this rule provided further that all promotions concerning upper subordinates, made thereunder, "shall be published in the Police Gazette and notifications by Superintendents shall be sent in through the Deputy Inspectors‑General who shall have power to revise such orders after recording reasons in each case." This was, apparently, devised to ensure that all eligible persons in the various districts in the Range, received promotions in due order of seniority. Only substantive promotions were to be made by order of the Deputy Inspector‑General. The same contention was raised in that case, as in the present, that in fact the appointment of Qamar Ali Shah must be taken to have been made by the D. I. G., who was a superior officer to the S. P., and that the Gazette notification issued by the S. P. was a mere formality in pursuance of the D. I. G's order. This was not accepted as the correct position. The so‑called order of the D. I. G. was interpreted as meaning no more than recommendation for appointment to the various S. Ps., who alone were competent to issue the necessary notifications in the Police Gazette. The order of sanction for a prosecution for misconduct, passed in that case by the S. P. was upheld as valid. The position in, the instant case is on a par with that which prevailed in the two cases cited. Here also the rules provide that the power of appointment vests in the Divisional Officers though the choice is restricted by the controlling voice of the Headquarters Office. The formal posting orders were issued by the Divisional Officers even in this case. Our attention was drawn to a copy of the original appointment order dated the 2nd of September 1944, passed by the Divisional Personnel Officer, Multan, which starts by saying "The following transfers and postings are ordered". At Serial No. 1, Nazir Ahmad Shah described as Mate, is shown as appointed to officiate as A. W. I., Grade. I, and posted to Jahanian vice Mr. Nabi Bakhsh. This was the legally effective order of appointment in the case of the respondent and we are unable to endorse the finding of the learned Judges of the High Court that in the circumstances of this case, the appointing authority must be deemed to be the Headquarters Office. Despite selection of suitable candidates by that office and the instructions issuing there from, the competency of the ‑ Divisional Officers, as appointing authorities, in law, remains intact. It follows, as a consequence, that the order of removal from service, passed by a Divisional Officer, was not open to any legal exception. The appeal, consequently, succeeds and is hereby allowed. The order of the High Court is set aside and the respondent's suit dismissed. We, however, make no order as to costs, in view of the special circumstances of the case. A. H Appeal allowed.