P L D 1971 Quetta 57 (PLP)

Before examining this argument, I shall briefly refer to the question of seniority between the appellant and the defendants who had superseded him. It is common ground between the parties that under the Baluchistan Rules seniority for the post of e Deputy Superintendent of Police depends on the date of con firmation of the person concerned as an Inspector. According to the letter of Senior Superintendent of Police, Quetta dated the 29th September 1956 (Exh. P‑2) Mr. D. E. Webb, the 4th defendant was confirmed as Inspector on 1‑3‑1947, Mr. Noor Ahmed deceased on 22‑9‑47, and the appellant on 1‑4‑1952, whilst both Mr. Muhammad Sadiq Lodhi and Chaudhry Muhammad Khan were confirmed on 3‑2‑1954. Finally, Mr. Aftab Ahmad Kazi was confirmed on 12‑2‑1955, Mr. Atta Muhammad was confirmed on 16‑4‑57, and Mr. Welch had not been confirmed even in 1964. It will therefore be seen that excluding Sheikh Noor Ahmad, who is dead, and Mr. Webb, the appellant was senior 0 all the other defendants who had superseded him. I shall first consider the respondents' argument that the appellant was superseded by the 3rd defendant in December 1956, because of the adverse remarks against him. In support of this submission, learned counsel for the respondent relied on the confidential report marked (Exhs. P‑3, P‑4 and P‑12). Exh. P‑3 is the annual confidential report of the appellant for the year ending 31st December 1956. Exh. P‑4 is only a letter of enquiry and does not contain any adverse remarks whatsoever against the appellant whilst Exh. P‑12 is the confidential report for the year ending 31st December 1957. Both these reports became available only after 31st December 1956, yet the appellant was superseded by the 3rd defendant on 3rd December 1956. As he was superseded before these confidential reports were prepared, it is clear that these confidential reports and any adverse remarks therein against him had nothing whatever to do with his supersession by the 3rd defendant. On the other hand, according to the second respondent's letter to the Govern ment of West Pakistan dated the 5th June 1958 (Exh. P‑70) and the said Government's letter dated the 18th November 1958, (Exh. P‑57) to the West Pakistan Public Service Commission it is very clear that the appellant had been superseded only because of the erroneous assumption that he was not entitled under the rules to promotion because he belonged to the Prosecution Branch. The next vacancy occurred in February 1959, and it was filled by the 4th defendant who was admittedly senior to the appellant. However, Mr. Bakhtiar argued that the appellant's supersession by the 4th defendant was illegal because, according to Exh. P‑2, to which I have referred, there was a charge of dishonesty against this defendant. But even if that charge was true, I do not think it means that this defendant could have been penalised for the rest of his life on account of a lapse from duty. Mr. Bakhtiar was not able to refer me to any rules according to which this defendant was liable to lose his seniority permanently because of a charge of dishonesty, and I see no merit in his argument, Mr. Marri's contention that this defendant was entitled to supersede the appellant is correct; therefore it is not necessary to consider whether the appellant was superseded by the 4th defendant on account of the adverse remarks against him. In September 1959, January 1960 and January 1961, there were three more vacancies and they were filled up by the 5th, 6th and 8th defendants respectively. As all these defendants were junior to the appellant, Mr. Marri has defended the appellant's superses sion on the basis of the adverse remarks against him but before I consider these remarks, it will be convenient to consider the merits of these defendants. Not only was the 5th defendant junior to the appellant by two years but, according to a letter written on behalf of the second defendant to the Senior Superintendent of Police, Quetta and Kalat dated the 18th March 1957, (Exh. P‑48) this defendant has been described "as unreliable and his honesty and moral character have also been questioned". Mr. Marri conceded that the adverse remarks against the appellant were comparatively of a very mild nature, therefore the appellant's supersession by an officer junior to him, whose integrity was in question, was prima facie very strange, and does not improve the case of the respondents. As to the defendants 6 and 8 the respondents did not produce their service records. According to Mr. Marri, the respondents were not bound to produce such evidence as it was privileged under section 124 of the Evidence Act. Although the respondents may have been entitled to such privilege, an adverse inference has nonetheless to be drawn against them for failure to produce evidence which was essential to their defence. As their case was that the appellant was 'rightly superseded by these defendants, although they were junior to him by more than three years, they had to show that the appellant's supersession was justified, under the Baluchistan Rules, because of the superior efficiency and honesty of these defendants. As they have withheld this evidence, it follows that they have failed to prove that the appellant's supersession was justified by the superior efficiency and honesty of these defendants. Therefore the appellant's supersession by these defendants can be justified only if he was not entitled to promotion on account of adverse remarks affecting his efficiency or honesty. Hence the importance of these r,‑marks to the respondent's case. As already observed, according to Mr. Marri, the adverse remarks against the appellant are contained on three documents (Exhs. P‑3, P‑4 and P‑12). Exh. P/3 is the confidential report of the appellant for the year ending 31st December 1956. As Exh. P‑3 contained remarks adverse to the appellant, the second respondent enquired from him vide his letter Exh. P‑4 for the reasons for these adverse remarks, therefore as already observed Exh. P‑4 does not advance the case of the respondents. Finally, Exh. P‑12 is the confidential report of the appellant for the year ending 31st December 1957. This report also contains adverse remarks, therefore the respondents' case is really based only on Exhs. P‑3 and P‑12 and I may point out here that the adverse remarks in both these reports have been made by Mr. Khalilur Rehman, S. S. P. (n Exh. P‑3 Mr. Khalilur Rehman has stated that although the appellant's work was satis factory it could not be called brilliant. He has then observed: "Of late he has exhibited a tendency to question the decisions and orders of his very senior officers which is not a happy reflection on his discipline." The confidential report of the following year (Exh. P‑12) contains the following remarks: "During the period under report the P. I. (the appellant) showed scant interest in his work. Consequently his control and supervision over his subordinates left much to be desired. He was trying to get leave and was ultimately very happy to have shaken off burden of responsibility when relieved." Mr. Marri admitted that, except for these two reports, the appellant had always earned good reports, and further barely two months before Exh. P/3 was prepared, the same Mr. Khalilur Rehman, S. S. P. had recommended the appellant for promotion order Exh. P‑2 to which I have referred. The respondents had therefore to explain the reasons for the sudden change in the Khalilur Rehman's opinion about the appellant's competence. In his reply dated the 28th May 1957 (Exh. P‑5) to the second respon dent's enquiry (Exh. P‑4) Mr. Khalilur Rehman has admitted that his adverse remarks in Exh. P‑3 had reference to the fact that, after his supersession on 3rd December 1956, instead of making representations, the appellant had filed an appeal and had been guilty of "giving vent to his feelings and sense of frustration in a manner prejudicial to the upkeep of morale and discipline of the police force". Bearing in mind the fact that the appellant's grievance was legitimate, the remarks appear to be harsh, but of course it is not for this Court to assess the effect of the appellant's behaviour on the morale and discipline of the Police force. I have to presume that the adverse remarks in Exhs. P‑3 and P‑12 were justified, and the burden of proving that they were not justified falls heavily on the appellant. In order to prove that these remarks were unjustified, Mr. Yahya Bakhtiar referred me to the oral and documentary evidence which I shall now consider. P. W. Malik Abdul Hamid, District Superintendent of Police, Special Police, Quetta has admitted in evidence that when the appellant objected to his supersession by the third defendant in December 1956, Mr. Khalilur Rehman, S. S. P. had asked him to advise the appellant to make departmental re presentations and not file an appeal. He has further said that he had conveyed Mr. Khalilur Rehman's message to the appellant, but the appellant had refused to take Mr. Khalilur Rehman's advice. On the basis of this evidence Mr. Yahya Bakhtiar argued that the adverse remarks reflected not the performance of the appellant but the annoyance of Mr. Khalilur Rehman with the appellant because the appellant had not accepted his advice, and in support of this argument he rightly pointed out that, prior to this and except for Exhs. P‑3 and P‑12, the appellant had always earned favourable reports. Be that as it may, the Inspector‑General's Standing Order No. 4 has prescribed the method for preparing the annual confidential report. According to rule 12 (l0) of these Orders, when an officer makes an adverse remark in the annual confidential report of an officer, and the defect is remediable, it has to be communicated to the officer concerned, and a note made on the report itself to that effect. The complaint against the appellant was obviously of a remediable nature. Mr. Khalilur Rehman should have communicated the gist of his remarks to the appellant and made an endorsement in that respect on the confidential report. Not only do the confidential reports (Exh. P‑3 and P‑12) not contain any such endorsement, but P. W. Malik Abdul Hamid has admitted that the appellant was never informed of these remarks. The value of the adverse remarks is materially affected by the fact that they have not been made in a manner required by law. This irregularity has been pointed out by the Superintendent of Police, Quetta to the D. I. G. of Police, Quetta in his letter dated February 1960 (Exh. P/50). In reference to the adverse remarks against the appellant the Superintendent of Police has observed in his letter as follows:- "In 1956 Ch. Ghulam Haider (the appellant) was reported fit for promotion as D. S. P. In 1958 it appears that he was reported not fit for the post of D. S. P. in the Executive line. He was awarded a Class 2 commendation certificate for conspicuous good work during 1958. It appears that the remarks that he was not fit for promotion to the post of D. S. P. were made without the officer being tried. These remarks contradict the report of 1956. In 1959 Ch. Ghulam Haider has been awarded a sanda for good work." From the observation quoted, it is clear that according to the author of this letter the adverse remarks against the appellant. were not justified. Three months later the Deputy Inspector of Police, Quetta and Kalat (who was the successor to the post of S. S. P., Quetta and Kalat) has referred to the appellant in his letter of 26th May 1960 (Exh. P‑51) and has commended the appellant's services. This letter was sent with the appellant's representations about his supersession, therefore it must have been written after full consideration of all the relevant cir cumstances, including the adverse reports (Exhs. P‑3 and P‑12) and in the last para. of his letter the D. I.‑G. of Quetta has written as follows:‑ "By forwarding the representation of Ch. Ghulam Haider it may be stated that during the course of leave vacancies the officer was employed on executive duties which her performed most satisfactorily. His knowledge of law is proficient and in my opinion he takes keen interest in his work . . . . . . . . . ." This letter completely contradicts the adverse remarks in Exhs. P‑3 and P‑12 about the appellant and casts doubts on the correctness of these remarks. The appellant has also produced oral evidence to contradict the adverse remarks against him in Exhs. P‑3 and P‑12 and to show that he was always diligent in the discharge of his duties. P. W. Ch. Abdul Haq, S. P. Kalat has said in evidence that he was the P. D. S. P. in Quetta and that the appellant had worked under him. In reference to the appellant's conduct and performance of duties he has stated as follows:‑ "As far as I remember, the plaintiff put his heart and soul in official work during 1956 and 1957 and was never found lacking in any respect. Had he been negligent in performance of his duties I would have reported against him . . . . . " Despite all this evidence, the respondents did not care to examine Mr. Khalilur Rehman, S. S. P. about his adverse remarks against the appellant. In these circumstances, although the burden of proving that the adverse remarks against him were not justified was heavily on the appellant, he has discharged that burden. It also appears to me that not only were these adverse remarks not justified but they do not amount to any stigma, against the appellant under the Baluchistan Rules. I am confirmed in my opinion by a letter written on behalf of the second respondent to the Additional Chief Secretary, West Pakistan dated 5th June 1968, Exh. P‑

70. In reference to the appellant's representations against his supersession, the Assistant Inspector‑General of Police has written in this letter as follows:‑ "The following Inspectors were superseded by the promotion of Ch. Muhammad Khan:‑ (1) D. E. Webb. (2) Mr. S. Noor Ahmed. (3) Ch. Ghulam Haider. (4) Mr. Muhammad Sadiq Lodhi. The Officers mentioned at 1, 2 and 4 have been superseded on account of bad record and No. 3 belongs to the Prosecuting Branch." As this letter was written after the so‑called adverse remarks against the appellant in Exhs. P‑3 and P‑12, it is clear that the respondent No. 2 did not consider these remarks to be of any relevance to the question of the appellant's supersession or promotion, and the letter clearly shows that the appellant was superseded only because of the erroneous view entertained by the second respondent that the appellant was not entitled to promotion because he belongs to the Prosecution Branch of the Police force. It is true that the appellant has not been able to prove a similar admission by the respondents subsequent to this letter, but I have examined the evidence and held that except defendant No. 4 the other defendants were not entitled to supersede the appellant.. Therefore the appellant has proved that except in February 199, he was illegally superseded by the defendants. However Mr. Marri argued feebly on the basis of a judgment of the East Pakistan High Court in Abdul Hameed v. Province of East Pakistan (P L D 1962 Dacca 132) that the appellant was not entitled to any relief even though his supersession was totally illegal. In that case, a Division Bench of the East Pakistan High Court has observed, in dismissing a writ petition, at page 141 as follows:‑ "In other words, a public servant can seek relief from a law Court on two grounds only, namely, (a) on the ground that he was dismissed or removed from service or reduced in rank by an authority subordinate to that by which he was appointed, and/or (b) that he was not given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him." This judgment was based on the judgment of the Federal Court in Noorul Hasan v. Federation of Pakistan (P L D 1956 S C (Pak.) 331) and the judgment of the Privy Council in Venkata Rao's case (64 I A 55). However the question whether a Government servant was entitled to relief in respect of rights based on the rules of his appointment was considered again by the Supreme Court in Pakistan v. Abdul Hameed and in Pakistan v. Muhammad Hayat (P L D 1962 S C 28). In Pakistan v. Abdul Hamid the material facts were that the respondent was a clerk in the Ministry of Defence and he had been superseded in contravention of the rules of service applicable to him. As in the instant case after repeated representations, he was given the promotion to which he was entitled, but not the seniority which he had claimed, therefore he filed a writ petition in this Court in which he prayed for an order directing the Government to grant him his seniority and this petition was allowed. The Government therefore filed an appeal in the Supreme Court, and reliance appears to have been placed on the judgment of the Privy Council in Vankata Rao's case for the contention that the claim of Abdul Hameed was in the nature of an injunction for the enforcement of rules of service, therefore, it should not have been granted. The appeal was dismissed by the Supreme Court and their Lordships observed that in the changed circumstances now existing they would not follow Vankata Rao's case. Similarly in Pakistan. v. Muhammad Hayat the Supreme Court again held that a Government servant was entitled to file a writ petition for an order directing the Government to pay him the allowances due to him under the rules of service applicable to him. In view of these judgments it appears to me that the judgment of the East Pakistan High Court relied upon by Mr. Marri is no longer good law. Turning now to the claim of the appellant, his cause of action is identical to that of Abdul Hameed in Pakistan v. Abdul Hameed therefore it will be convenient to quote here the observations of Cornelius, C. J. at page 111 of the judgment which read as follows:‑ "We have considered the point of inconvenience in the present case, and are of the opinion that since Sheikh Abdul Hamid has now been promoted to a higher position, to allow him his seniority from a particular date, need not involve anything much beyond the correction of a few entries in his service book and perhaps some degree of accounting in respect of his salary, and that his posting need not cause disturbance to the postings of other officials who may be affected by the change. In any case, all service rules contain a residuary provision enabling the Government to deal with the case of any person under the rules according to justice and equity so long as he is not treated less favourably than the rules require that is to say, either in the case of Sheikh Abdul Hamid or in those of the persons whom he may supersede as a result of the writ, the Government can, within its plenary power make adjustments of a compensatory nature." I am in respectful agreement with these observations. As in Abdul Hamid's case, the appellant has been illegally superseded on an erroneous interpretation of the Baluchistan Rules, therefore in accordance with these observations of Cornelius, C. J. he is entitled both to a declaration in respect of his claim for seniority, which was granted by the trial Court, and to an injunction for the enforcement of the said seniority. The order of the learned District Judge remanding the case for further evidence is therefore erroneous because no further evidence is required. This order has therefore to be set aside, and the appellant is entitled to a decree as prayed. However learned counsel for the appellant further argued that the appellant was entitled to pecuniary relief on the basis of his seniority. This argument was based on the judgment of the Cornelius, C. J. in Abdul Hamid's case, and learned counsel relied on the observations underlined* by me. Even if these observations support the appellant's claim, he has not claimed pecuniary relief in his suit, therefore pecuniary relief cannot be granted in the absence of an amendment' in the plaint, No such prayer has been made by the appellant, presumably because of limitations, therefore the appellant is not entitled to any relief except that claimed in the suit. In the result, I restore the order of the trial Court granting the appellant a declaratory decree that he was senior to defen dants Nos. 3 to 8 (in the trial Court) except defendant. No. 4 and I also grant a permanent injunction directing the respondents 1 to fix the appellant's seniority in accordance with this judgment. The appeal is allowed with costs against the respondents. R. B. A. Appeal accepted.