P L D 1971 Karachi 793 (PLP)

. . . do . . . . . Mr. Ilam Uddm Arsla P H E Department B & R Lahore Mr. Mazhar Mohammad Ayub Khan On deputation to B. D. Mr. Mohammad Qadir son of Jan Muhammad Sh. On deputation to E. D. Mr. Mohammad Ilyas Mastoi B & R Hyderabad 29.A Mr. Tayabuddin F. Channa . . . . . do . . . . . Mr. Nooruddin son of Amir Bakhsh Balooch B & R Quetta Mr. Abdul Ghani son of Qamaruddin Bhutto B & R Hyderabad Mr. Noor Ahmed Nabi Dad Agha B & R Quetta Mr. Mohammad Ayub Anwar Sh. On deputation with A. D. C., Sukkur Mr. Karim Bakhsh Soomro B & R Hyderabad Mr. Ilyas Beg Mirza B & R Quetta Mr. Ghulam Mohammad son of Taj Mohammad B & R Hyderabad Mr. Abdul Razak son of Mohammad Hasham Sh. B & R Hyderabad Mr. M. A. Khan . . . . . do . . . . . Mr. Zulfiqar Haider On deputation with B. D. Mr. Iftikhar Ahmed son of Hashmat Ali B & R Hyderabad Mr. Mohammad Yasin Qureshi B & R Quetta Mr. Mohammad Ali son of Haji Mohammad Qureshi B & R Hyderabad Mr. Abdul Ghafoor son of Imam Bakhsh B & R Agency Lahore Mr. Mohammad Hassan son of Mohammad Yaqub B & R Quetta Mr. Riaz Hussain Shah B & R Hyderabad Mr. Inayat Ali Shah B & R Bahawalpur Mr. Allah Ditta B & R Bahawalpur Mr. Zawwar Hussain B & R Quetta Mr. Abdul Ahad son of Qadir Shah On deputation to M. C. Jacobabad. Mr. Saleem‑Uz‑Zaman On deputation to M. C. Nawab Shah. Mr. Abdul Karim Sh. H & S Agency Lahore. Mr. Ibni Mujtaba Naqvi On deputation to M. C. Sukkur. Mr. Hasan Haider Zaidi On deputation to B. D. Group D Mr. Malik Mohammad Yousuf B & R Peshawar. Mr. Mahboob Illahi. do. Mr. Abdul Salam. do. Mr. Rab Nawaz. do. Mr. Asghar Ali. do. Mr. Abdul Hamid Bhatti. do. Mr. Wajid Hussain. do. Mr. Mohammad Dayar. do. Mr. Ghulam Mustafa. do. Mr. Dost Mohammad II, do. Mr. Noorul Haque. do. Mr. Dost Mohammad. I. do. Mr. Zafar Ali. do. Mr. Dilawar Khan. do. Mohammad Yousuf Khan Janjua. do. Mr. Abdul Jabbar. P. H. E. Department Mr. Mohammad Nadir Khan B & R Peshawar. Mr. Jan Mohammad. do. Mr. Fazal Rahim. do. Mr. Zulfiqar Hussain. do. Mr. Qasim Shah. On deputation to A. P. Dir Mr. Jahangir Khan. On deputation to Commissioner, D. I. Khan. Mr. Mahboob Ali. do. Mr. Hussain Ali. On deputation to B. D." "GOVERNMENT OF WEST PAKISTAN" COMMUNICATION & WORKS DEPARTMENT Dated Lahore the 13th June 1970. No. E. II‑12‑2/64, on the advice of the West Pakistan Public Service Commission Lahore, the Governor of West Pakistan is pleased to extend the continued ad hoc appointment of Overseers/Supervisors, Civil E & M Assistant Engineers (Temporary)/Officiating Sub‑Divisional Officer Civil and E & M in the buildings and Highways Department up to 30‑6‑1970. M. Mazhar Munir, Secretary to Government of West Pakistan Communication and Works Department." Karachi Dated the 6th April 1971. No. EI (C & W) 1‑200/70.‑In consultation with the Sind Baluchistan Public Service Commission, Government is pleased to extend as an interim measure, the continued ad hoc appoint ment of Overseers/Supervisors, Civil and E & M as Assistant Engineers (Temporary)/Officiating Sub‑Divisional Officers Civil and E & M in the Sind Buildings and Highways Department up to 31‑12‑1970. (Sd.) S. M. Rafi A., Secretary to Government of Sind Communication & Works Department" A perusal of these notifications goes to show that the respon dents acquiesced in their officiating posts of which they have amply enjoyed up to the date of reversion, yet no objection was raised by them to the officiating appointments and they will ingly continued to enjoy the offices offered to them by their employer, the petitioner. The respondents therefore, cannot be allowed to agitate at this late stage that their reversion in the circumstances amounts to reduction in rank. They will have definitely full opportunity to show any existing law or rule in support of their contention before the learned trial Court at the time of hearing of the case.

13. Lastly I may mention that. the learned Advocate -General relied upon an unreported judgment of their Lordships of the Supreme Court in the case of Province of West Pakistan v. Malik Asghar Khan decided on 3rd September 1970. In this case their Lordships of the Supreme Court have clearly laid down, not only the basic considerations for grant or refusal of temporary injunction, but also the circumstances in which the injunction may be granted or refused against the Government Department. I may reproduce the observations of their Lordships with benefits as under :‑ "Lately in the case of Muhammad Umer Beg v. Sultan Mahmood P L D 1970 S C 139 this Court has laid down three basic considerations for the grant or refusal of temporary injunction which are : (1) Whether the plaintiff has a prima facie good case : (2) Whether the balance of convenience lies in favour of the grant or refusal of the injunction and (3) Whether the plaintiff will suffer an irreparable loss if the injunction is refused. It seems that the learned Single Judge in the High Court has not taken all these factors into consideration while issuing temporary injunction in favour of the respondent and has merely proceeded to issue it on his feeling that the two Courts below have not gone deeper into merits of the respondent's case on the strength of the West Pakistan Forest Department (Subordinate Service) Rules, 1963, which the respondent has sought to invoke in his favour. We would refrain from making any observations on the merits of the respondent's contention even prima facie, as it might prejudice his case but we are constrained to hold that neither of the two other essentials for grant of a temporary injunction reproduced above is satisfied in this case to incline us to uphold the view of .the learned Single Judge of the High Court. Issuance of temporary injunctions to the Govern ment Departments in respect of service matters is bound to disturb their working, and they should not ordinarily be issued unless there are compelling reasons to do so, because balance of convenience ordinarily would not lie in disturbing the administrative arrangements of a Department. Again, there can be no question of any irreparable injury being caused to the respondent in this case by refusing the temporary injunction to him as he can claim a monetary compensation in case he succeeds in his suit and the orders of the appel lant reverting the respondent to his original post of Forester are finally held as illegal and without jurisdiction by the competent Court. In this situation, we feel that the learned Single Judge in the High Court has not proceeded on correct legal principles in granting a temporary injunction to the respondent which was refused by the trial Judge as well as by the learned District Judge." Before parting with the cases, however, I may refer to the judgment relied upon on behalf of the respondents which is reported as Jafar Ali Akhtar Yousafzai v. Islamic Republic of Pakistan. This Division Bench Judgment was heavily relied upon on behalf of the respondents before the two Courts below as well as before me. In this case it was held that‑‑ "When continuous officiation is not specifically authorised by any law and the Government/competent authority continues to treat the incumbent of a post as officiating, it is only to retain extra‑disciplinary powers or for other reasons including those of inefficiency and negligency, e.g. failure on the part of the relevant authorities to make the rules in time, that the prefix 'officiating' is continued to be used with the appoint ment and in some cases for years together. In proper cases, therefore, Courts are competent to decide whether for practical purposes and for consequences such appointments have per manent character and, when it is so found, to give legal effect to it." In my opinion the facts of this case are clearly distinguishable than those before me, in the present cases the order of officiating appointments are not challenged by the respondents there fore, it cannot be said that the orders were passed by an incompetent authority as were held in the case cited before me in which the order of officiating was found to be unlawful while, in the cases before me the validity of initial order and its continuity as officiating promotion is not challenged therefore, in my opinion the cases cited by the learned counsel for the respondents does not help him in any way. In view of the above discussion and the legal position I am of the opinion that these revision petitions must succeed, as a result I set aside the order of the learned Additional District Judge, Hyderabad dated 2nd February 1971, and upheld the order of the, learned Senior Civil Judge, Hyderabad dated 8‑1‑1971, and accept the revision petitions with costs. Order accordingly. The record of the lower Courts be sent back for trial of the suit where the respondents/plaintiffs will have ample opportunity to put their side of the case for final adjudication. K. B. A. Petitions accepted.