P L D 1965 Supreme Court 661 (PLP)

B. Z. KAIKAUS, J.‑This judgment will dispose of an appeal by special leave filed by the Government of Pakistan against an order of the High Court of West Pakistan quashing in the exercise of certiorari jurisdiction the removal‑of Muhammad Ayub respondent from the post of a permanent overseer in the M. E. S. Department. A departmental examination for overseers grade I of the M. E. S. Department had been held at Quetta in October November 1955. The respondent who was posted at Sibi at that time was one of those who appeared in the examination. Information was received by the Government as to irregularities having been committed during the examination and after some preliminary investigation an Army Court of 3‑nquiry was constituted by the Divisional Commander, Quetta, to enquire into charges levelled against officers and staff of the M. E. S. In that inquiry the respondent was examined as a witness. Some other witnesses made allegations against the respondent during their examination and the Court without framing any formal charge against the respondent gave him an opportunity to cross -examine those witnesses, an opportunity which the respondent availed of. On 18th March 1957, a charge‑sheet was served on the respondent which contained allegations of serious malpractices in connection, with the examination. On 22nd March 1957, the respondent replied to the charge‑sheet. The explanation of the respondent not having been considered satisfactory he was served, on 24th May 1957, with a notice to show cause why he should not be removed from service. The respondent replied to the notice and after a consideration of his reply he was removed from service by the Secretary, .'Ministry of Defence, on 24th July 1957. The respondent then filed the writ petition out of which this appeal arises in the High Court of West Pakistan challenging his removal on the ground that no proper opportunity to show cause had been afforded to him. The Government of Pakistan pleaded in the first place that the respondent was not the holder of a civil post within the meaning of Article 181 of the Constitution of 1956 and therefore had no locus standi to file the writ petition and in the second place contended that a proper opportunity to show cause had been granted. The learned ,Judges of the High Court came to the conclusion that there was no proper opportunity for showing cause because the witnesses against the respondent had been allowed to be cross‑examined before the respondent knew what the charges against him were and after the charges were served on him there was no further opportunity for cross‑examination. As to the objection that the respondent not being the holder of a civil post had no right to challenge his removal the learned Judges held that the order of removal was void on account of violation of principles of natural justice and it was not necessary to determine whether the respondent was the holder of the civil post. Leave to appeal had been granted in this case because it was contended on behalf of the Government that the respondent was not entitled to challenge the removal unless he was the holder of a civil post. In holding that the decision of the question whether the respondent held a civil post was unnecessary, the learned Judges of the High Court, have misconceived the legal position. It will be convenient before proceeding further to reproduce Articles 180 and 181 of the Constitution of 1956 which are applicable to this case (though their wording is the same as that of Articles 176 and 177 of the present Constitution). They run: "

180. Tenure of office of. persons employed in public services.‑Except as expressly provided by the Constitution‑-- (a) every person who is a member of a defence service, or of a civil service of the Federation, or of an All‑Pakistan Service, or holds any post connected with defence, or a civil post in connection with the affairs of the Federation, shall hold office during the pleasure of the President, and (b) every person who is a member of a civil service of a Province or holds any civil post in connection with the affairs of a Province, other than a person mentioned in paragraph (a) of ihis Article, shall hold office during the pleasure of the Governor." 181.‑(1) No person who is a member of a civil service of the Federation or of a 'Province, or of an All‑Pakistan Service, or holds a civil post in connection with the affairs of the Federation, or of a Province, shall be dismissed or removed from service, or reduced in rank, by an authority subordinate to that by which he was appointed. (2) No such person as aforesaid shall be dismissed or removed from service, or reduced in rank, until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him: Provided that this clause shall not apply‑ (a) where a person is dismissed or removed from service‑ or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or (b) where an authority empowered to dismiss or remove from service a person, or to reduce him in rank, is satisfied that for some reason, to be recorded by that authority, it is not reasonably practicable to give that person an opportunity of showing cause; or (c) where the President or the Governor, as the case may be, is satisfied, for reasons to be recorded by him, that in the interest of the security of Pakistan or any part thereof, it is not expedient to give to that person such an opportunity." All the employees of the Government mentioned in Article 180 hold office subject to the pleasure of the President or the Governor. When an employee holds office at the pleasure of the employer, it means that his services can be terminated at any time without assigning cause. Had it not been for Article 181 the employee would have no remedy against his termination of service by the Government. Article 181, however, engrafts a limitation on the power of the Government to dismiss the employees who are mentioned in this Article. The limitation is that there can be no dismissal (it includes removal) unless there be an opportunity to show cause. An employee who goes to Court challenging an order of removal must show that he is in one of the categories mentioned in Article

181. Unless he does so he has no right to challenge the order of removal. Article 181 applies to a person who is a member of a civil service of the Federation or of a Province or of an all Pakistan Service or holds a civil post either in connection with the affairs of the Federation or in connection with the affairs of a Province. Admittedly the respondent does not belong to any of the services mentioned in Article

181. The only ground on which he claims the protection of Article 181 is that he holds a civil post. The contention of the Government on the other hand is that he holds a post connected with the defence and not a civil post. Turning back to Article 180 it will appear that it mentions some categories of services and two categories of posts. A post is either one in connection with defence or it is a civil post. Prima facie this division of posts into posts connected with defence and civil posts means that these two categories are exclusive of each other so that if a post falls in one category it cannot fall in the other. Nothing has been said before us in argument which might negative this inference. The effect is that if the respondent be holding a post connected with the defence he cannot be holding a civil post. As to whether the respondent is holding a post connected with the defence there can be little doubt. The department in which the respondent is holding a post is the Military Engineering Service Department which is admittedly a defence department. All employees or persons holding posts in this department would be holding posts connected with defence. The main argument put forward on behalf of the respondent is that he is eligible for promotion to a Central service and in support of the proposition that he is so eligible reliance has been placed upon a letter of the Ministry of Defence. We are prepared to accept that he is so eligible. That, however, does not improve his position with respect to the right to challenge the order of removal. If he is eligible for promotion as member of a Central service he does not acquire the rights belonging to members of that service and his locus standi for challenging the order of removal has still to be decided by asking whether he holds a civil post. Of course if he became a member of a Central service the result would be that whatever the post he was holding he would be entitled to the protection of Article 181 because that Article is applicable to all members of the services mentioned therein. But if, a person be holding a post connected with defence the fact that he can be promoted to a Central service would not entitle him to the protection granted by Article

181. It may not be irrelevant in this connection to refer to the fact that the respondent is a person to whom the Army Act applies. Section 2 of the Army Act enumerates the categories of persons to whom that Act is applicable and one of those categories is "persons enrolled under this Act'". During the argument before us a question was put to learned counsel for the respondent as to whether the respondent had been enrolled under the Army Act and it was conceded that he had been so enrolled. Article 181 not being applicable to the respondent whether there was a proper inquiry before he was removed from service is not a matter which affects the order of his removal. The best that could be said, if the inquiry was not in accord with the principles of natural justice, is that there was no inquiry. If Government was entitled to terminate the services of the respondent even without an inquiry, any irregularity in the inquiry actually made is of no consequence. This appeal is allowed, the order of the High Court is set aside, and the writ petition filed by the respondent is dismissed. Parties will, however, bear their own costs in both the Courts. S. A. H. Appeal allowed.