P L D 1961 (W (PLP)

SHABIR AHMAD, J.

‑Muhammad Afzal Khan, who had been accepted by the Deputy Inspector‑General of Police, Multan Range, as a candidate for appointment as an Assistant Sub -Inspector of Police on the 10th of March 1956, was appointed an 'Assistant Sub‑Inspector of Police on three years' probation on the 14th of March 1956. The order of appointment was made by the Superintendent of Police, Multan, and a gazette notifi cation was issued with regard to it. This notification, a copy of which has been placed on the record, was in the following terms :‑ "Police Department, Multan District. For publication in Police Gazette, Part II, Orders by the Superintendent of Police, Multan. Dated the March 1956. No. 4164. Appointment.‑Having been declared medically fit by the Medical Superintendent, Civil Hospital, Lyallpur, Muhammad Afzal Khan, son of Chaudhri Muhammad Yaqub, an accepted candidate, has been appointed as an Assistant Sub-Inspector of Police, on three years' probation, at Rs. 75 p.m. in the scale of Rs. 75‑5‑100/5‑120 plus usual allowances in an exist ing vacancy of the Multan Range, w.e.f. 8‑3‑1956: He has been allotted Range No. 144/M. Muhammad Afzal Khan is posted to Multan District. (Sd.) ............ Superintendent of Police, Multan No. 4165 dated 14‑3‑

56. Copy with a spare copy forwarded to Deputy Inspector General of Police, Multan Range, Multan Cantonment, for favour of information and necessary action. (Sd.) Superintendent of Police, Multan."

2. On the 7th of March 1959, when Muhammad Afzal Khan was serving as a probationer Assistant Sub‑Inspector of Police at Montgomery, he was discharged from service by order of the Superintendent of Police, Montgomery District. This order was evidently passed after Muhammad Afzal Khan had been given an opportunity to show cause why his services should not be terminated. Muhammad Afzal Khan presented an appeal to the Deputy Inspector‑General of Police, Multan Range, but the appeal was dismissed, as was a representation made to the Inspec tor‑General of Police, West Pakistan. Having failed to get any redress by means of departmental appeals and petitions, Muhammad Afza1 Khan has presented this petition under Article 2 (4) of the Laws (Continuance in Force) Order, 1958, praying that the order of the Superintendent of Police, Montgomery District, whereby the petitioner was discharged from service should be quashed and a direction be issued to the Deputy Inspec tor‑General of Police, Multan Range, that the petitioner should be reinstated as an Assistant Sub‑Inspector of Police. Respon dents to this petition are three, namely, the Superintendent of Police, Montgomery, respondent No. 1, Deputy Inspector‑General of Police, Multan Range, respondent No. 2, and Home Secretary to the Government of West Pakistan, respondent No. 3, but the written statement, required by the rules, has been put in only by respondent No.

1. At the time when the order of discharge was passed, the office of the Superintendent of Police, Mont gomery, was held by Mr. Muhammad Abbas Mirza, but at present that office is held by Mr. Muhammad lqbal Khan Sumbal, P. S. P., who has signed the written statement and the affidavit attached to it. The gist of the written statement is that the petitioner's claim in the writ petition that he was appointed by the Deputy Inspector‑General of Police, Multan. Range, was wrong because the appointment was made by the Superintendent of Police, Multan and as the order of discharge was passed by a Superin tendent of Police the order, in addition to being entirely justified, was not ultra vires. The written statement further pleaded that as the petitioner had been taken on probation for three years on the 10th of March 1956, the termination of his services within that period of three years did not amount either to dismissal or removal from service and, therefore, neither of the writs prayed for by him could issue. Though the written statement was put in only by the first of the three respondents, Mr. M. A. Rehman, Advocate, appeared for all the three respondents and it appears that as the position they would have taken if they had put in separate written statements would have been precisely the same as that taken in the written statement of respondent No. 1, respon dents Nos. 2 and 3 did not consider it necessary to put in written statements.

3. Learned counsel for the petitioner urged that the appoint ment of the petitioner as an Assistant Sub‑Inspector of Police was made by the Deputy Inspector‑General of Police, Multan Range, and as' a Superintendent of Police was subordinate in rank to a Deputy Inspector‑General of Police, the order, of discharge passed by respondent No. 1 which, by whatever name it may be called, was an order of removal from service could not be passed by respondent No.

1. In this connection, learned counsel relied on the intimation sent by Mr. Ata Muhammad Noon, P. S. P., then Deputy Inspector‑General of Police, Multan Range, to the petitioner by means of letter No. 2103 dated the 10th of March 1956, which is Annexure A on the record. This letter is in the following terms :‑ "Muhammad Afzal Khan is offered a post of Assistant Sub -Inspector of Police on three years' probation at Rs. 75 p.m. in the scale of Rs. 75‑5‑100/5‑120 plus usual allowances. If he accepts the offer he should report to the Superintendent of Police, Multan, at once. He will be liable to be discharged at any time during the period of probation in the event of his failing to pass the prescribed examination at Police Training School, Sargodha, or if otherwise found unsuitable for retention in the Police Department." It is after this letter that the notification regarding the appoint ment of the petitioner as an Assistant Sub‑Inspector of Police, which has been reproduced in the last but one paragraph was issued by the Superintendent of Police.

4. The first question that requires determination is whether the appointment of the petitioner as an Assistant Sub‑Inspector of Police on three years' probation was made by the Deputy Inspector‑General of Police, Multan Range, or by the Superinten dent of Police. The appointment was in strict conformity with the rules contained in Chapter XII of the Punjab Police Rules, 1934, which were in force and had been made under sections 7 and 12 of the Police Act (V of 1861). It would be very helpful to have before one a clear picture of the rules which require consi deration in the present case. One of these rules is Rule 12.1, which occurs in Chapter. XII in Volume II of the book entitled the Punjab Police Rules which was published in 1957 under the authority of the Provincial Government. The relevant part of the rule is to the effect that power to appoint Sergeants, Sub- Inspectors and Assistant Sub‑Inspectors had been delegated to Superintendents of Police and Assistant Superintendent, Govern ment Railway Police. Another part of Rule 12.1 is, to the effect that Sub‑Inspectors and Assistant Sub‑Inspectors shall be borne on range rolls and shall receive range Constabulary numbers. Some of the other rules occurring in Chapter XII mentioned above, that require consideration, are Rules 12.7 and 12.8, which read as follows :‑ "12.7 (1) A list of accepted candidates for direct appointment to the rank of assistant sub‑inspectors shall be maintained in the office of each Deputy Inspector‑General in form 12.7 (1) and appointments shall be made by selection from this fist. Candidates must be limited to residents of the range. No person who is already serving in or has resigned from the police force of another Province shall be accepted as a candidate without the approval of the Inspector‑General of Police of that Province. (2) The Assistant Inspector‑General, Government Railway Police, shall maintain a similar list, but may accept candidates residing anywhere in the Province." "12.8. Inspectors, sergeants, sub‑inspectors and assistant sub‑inspectors, who are directly appointed will be considered to be on probation for three years and are liable to be discharged at any time within the period of their probation if they fail to pass the prescribed examinations, including the riding test, or are guilty of grave misconduct or are deemed for sufficient reasons, to be unsuitable for service in the Police. A proba tionary inspector shall be discharged by the Inspector‑General, and all other Upper Subordinates by Range Deputy Inspector-General, Assistant Inspector‑General, Government Railway Police, and Assistant Inspector‑General, Provincial Additional Police (Designated as Commandant, Provincial Additional Police). No appeal lies against an order of discharge. (2) The pay admissible to a probationary inspector, sergeant, sub‑inspector or assistant sub‑inspector is shown in Appen dix 10.54, Table A." The definition of the expression "upper subordinate "is given in Chapter I of the First Volume of the 1934 Punjab Police Rules (1957 Edition) in Rule 1.13 ‑as including all enrolled police officers of and above the rank of assistant sub‑inspector. The above-reproduced Rules 12.7 and 12.8 make it clear that no person can be appointed an Assistant Sub‑Inspector of Police directly unless his name is borne on a list of accepted candidates for direct appointment as Assistant Sub‑Inspector which list is to be main tained in the office of each Deputy Inspector‑General of Police, and that a Superintendent of Police can make direct appointment to the post of an Assistant Sub‑Inspector only from this list. I need hardly mention that there are a number of districts in each police range And each of those districts has at the head of its police force an officer called a Superintendent of Police or in some districts a Seni6r Superintendent of Police and that that officer is undeniably inferior in rank to a Deputy Inspector‑General of Police. It was because of what is said in Police Rule 12.7 that before the Superintendent of Police, Multan, passed a formal order appointing him an. Assistant Sub‑Inspector of Police, the petitioner was informed by the Deputy Inspector‑General of Police, Multan Range, by means of the letter dated the 10th of March 1956, which has been placed on the record by the peti tioner and which has been reproduced in paragraph 3 that he was being offered the post of Assistant Sub‑Inspector of Police and if he accepted the offer he should present himself before the Superintendent of Police, Multan. As the rules stood, at the relevant time, a person could not be directly appointed by a Superintendent of Police as an Assistant Sub‑Inspector of Police unless his name were borne on a register of approved candidate maintained by the Deputy Inspector‑General of Police and in these circumstance I cannot accept the contention of learned counsel for the respondents that the appointment of the petitioner as an Assistant Sub‑Inspector of Police had been made by the Superintendent of Police, Multan, and not by the Deputy Inspec tor‑General of Police, Multan Range. It is true that the order which purports to be an order of appointment was made by the Superintendent of Police, but it is undeniable that if the Deputy Inspector‑General of Police had not declared the petitioner to be a fit person for appointment as an Assistant Sub‑Inspector of Police directly, the Superintendent of Police, Multan, would have been incompetent to appoint the petitioner to that post. It should be borne in mind that while a Superintendent of Police could not issue orders in an administrative matter to the Deputy Inspec tor‑General of Police in whose range he was working, it can hardly be doubted that he would be and by the orders of a Deputy Inspector‑General of Police in administrative matters. In view of all this, I am of the view that the appointment of the petitioner as an Assistant Sub‑Inspector of Police could not in law be deem ed to have been made by the Superintendent of Police, Multan, and that the worst that could be said against the petitioner in this connection is that the appointment was made partly by the Superintendent of Police, Multan, and partly by the Deputy Inspector‑General of Police, Multan. It follows, therefore, that if the termination of the services of the petitioner in the present case amounts either to, removal or dismissal from service, the impugned order of the Superintendent of Police, Montgomery, was passed by an authority lower in rank than the one that had made the appointment.

5. The question whether the Superintendent of Police, Montgomery, was competent to pass the impugned order may now be taken up. It is clear that a mandatory provision of Rule 12.8, which has been reproduced in the last paragraph, is that a probationary Assistant Sub‑Inspector of Police could not be discharged from service during the period of his probation by an officer other than the Deputy Inspector‑General of Police in whose range he was working. It follows, therefore, that the impugned order of the Superintendent of Police, Montgomery, was clearly in contravention of Rule 12.8. Here, Mr. M. A. Rahman, Advocate, learned counsel for the respondents, pressed into service that part of section 240 of the Government of India Act, 1935, and that part of Article 182 of the Constitution of the Islamic Republic of Pakistan which came into force on the 23rd of March 1956 and was abrogated on the 7th of October 1958, which were to the effect that a person in the civil service or holding a civil post under Government in Pakistan could not be dismissed or removed from service by an authority lower than the one that made the appointment, and argued that as the appoint ment of the petitioner ax an Assistant Sub‑Inspector of Police was made by the Superintendent of Police, Multan, and the Superin tendent of Police, Montgomery, who passed the impugned order, was in no sense subordinate to the Superintendent of Police, Multan, the impugned order was not invalid. I have indicated already that the appointment of the petitioner as an Assistant Sub‑Inspector of Police could not be deemed to have been made by the Superintendent of Police, Multan but for the purposes of this argument of Mr. Rahman, I will assume that the appointment was made by the Superintendent of Police. Multan, and not by the Deputy Inspector‑General of Police, Multan Range. On the 14th of March, 1956, when the Superintendent of Police, Multan had directed the publication of a notification regarding the appointment of the petitioner as an Assistant Sub‑Inspector of Police in the Multan District, the Government of India Act, 1935, was in force and 243rd section of this enactment was in the follow ing terms: "Notwithstanding anything in the foregoing provisions of this chapter, the conditions of service of the subordinate ranks, of the various police forces in Pakistan shall be such as may be determined by or under the Acts relating to those forces respectively." The language used in the above reproduced section makes it clear that the provisions contained in section 240 of the Government of India Act, 1935, on which Mr. M. A. Rahman placed reliance, were, by reason of the provisions contained in Rule 12.8 of the Punjab Police Rules, inapplicable to the case of the petitioner. Their Lordships of the Privy Council had to deal with section 243 of the Government of India Act, 1935, in the case reported as North‑West Frontier Province v. Suraj Narain Anand (P L D 1949 P C 1) in which one of the questions for consideration was whether a Sub‑Inspector of Police, who had been appointed by the Inspector‑General of Police, could be dismissed from service by a lower authority if the rules permitted that to be done, and they answered this question in the affirmative holding that section 243 o f the Govern ment of India Act, 1935, applied to the case and not section 240 of that Act. It was rightly pointed out by Mr. Rahman that no provision which could be said to correspond to section 243 of the Government of India Act, 1935 was incorporated in the Constitu tion of the Islamic Republic of Pakistan with the result that under Article 182 of that Constitution the protection that a subordinate police officer, had was that no authority lower in rank to the one that had made his appointment to the post he was holding could dismiss or remove him from service. At the time the impugned order was passed by the Superintendent of Police, Montgomery, the Constitution of the Islamic Republic of Pakistan was no longer in force because though enforced .on the 23rd of March 1956 it was abrogated on, the 7th of October 1958 when Martial Law was imposed in Pakistan and the provisions applicable were contained in Law (Continuance in Force) Order, 1958. Article 6 of this Order said inter alia, that conditions of service of all persons in the employ of Central and Provincial Governments in Pakistan were to be the same as they were under the late Constitu tion of 1956. If, therefore, a Superintendent of Police could, under the provisions of the late Constitution of 1956, pass an order of the type which is under consideration in the present case, the argument of Mr. Rahman would be unassailable. I am of the view, however, that even under the Constitution of 1956 the impugned order could not be passed by an authority lower in rank to a Deputy Inspector‑General of Police. This view of mine is based on provision of law contained in the Constitution of 1956 and in this connection a provision of that Constitution which is fully as relevant as its 181st Article is Article

224. Article 181 was to the effect that no authority lower than the one which made the appointment of a person to a civil service or a civil post under any of the Governments in Pakistan could dismiss or remove him from service or reduce him in rank and that an order of any of the above characters could not, except in cases men tioned in the Article itself, be passed without giving the public servant concerned an opportunity to show cause against the action proposed to be taken against him. The relevant part of Article 224 of the Constitution of 1956 was in the following terms:‑ "(1) Notwithstanding the repeal of the enactments mentioned in Article 221, and save as is otherwise expressly provided in the Constitution, all laws (other than those enactments), including Ordinances, Orders‑in‑Council, Orders, rules, bye‑laws, regula tions, notifications and other legal instruments in force in Pakistan or in any part thereof, or having extra‑territorial validity, immediately before the Constitution Day, shall, so far as applicable and with the necessary adaptations, continue in force until altered, repealed or amended by the appropriate Legislature or other competent authority." Article 221 of the Constitution to which reference has been made in this Article was to the effect that the Government of India Act, 1935 and the Indian Independence Act, 1947 were repealed except in so far as Article 23u was concerned in which case the repeal was to take effect from the 1st day of April 1957. The Punjab Police Rules were made in 1934 when the Government of India Act, 1919, was in force but the repeal of that Act by the Government of India Act, 1935, did not divest them of their force because all Laws and Rules which were in force at the time when parts of the Government of India Act, 1935, came into force on the first day of April 1937, were continued in force by reason of section 292 of the Act of 1935 till such time as they were altered or repealed or amended by a competent Legislature or other competent authority and the section was applicable to rules made under Acts other than the Government of India Act because of the definition given in section 311 of the Act of 1935 of the expression "existing India Law", which occurred in section 292 of that Act, while rules made under the Government of India Act, 1919, were continued in force by section 276 of the Government of India Act, 1935. At the time of the coming into force of the Constitution of the Islamic Republic of Pakistan on the 23rd of March 1956 Rule 12.8 of the Punjab Police Rules was in force and it could be held to have lost its validity only if it were: opposed to any provision of the Constitution of 1956.

6. Mr. M. A. Rahman learned counsel for the respondents; relied on Article 181 of the Constitution of 1956 to support his contention that Rule 12.8 of the Punjab Police Rules became a dead letter on the 23rd of March 1956 when that Constitution came into force, but I am clear in my mind that this contention is untenable. Clause 1 of Article 181 of the Constitution of the Islamic Republic of Pakistan, ' which alone is relevant for the present purposes, was in these terms:

‑ "No person who is a member, of a civil service of the Federa tion 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." The plain meaning of the plain language of the above reproduced clause 1 of Article 181 of the Constitution of 1956,, which was different from subsection (2) of section 240 of the Government of India Act, 1935, in this respect that while . the subsection applied to dismissal and removal from service, the clause applied in addition to reduction in rank also, is that an authority that made the appointment or one higher in rank to that authority could pass an order of dismissal .or removal from service or reduction in rank but an authority lower in rank to the one that made the appointment could not do so. It follows, therefore, that if a rule enjoined that only an authority higher than the one which had made the appointment could pass an order of dismissal or removal from service or reduction in rank, the rule would not offend against Article 181 of the Constitution of 1956, which a rule which authorized an authority lower in rank to the one that made the appointment to pass any such order would do. Rule 12.8 of the Punjab Police Rules being, consequently, valid, I have no hesitation in coming to the conclusion that even if it be assumed that the appointment of the petitioner as Assistant Sub‑Inspector of Police was made by the Superintendent of Police Multan, the impugned order would offend against law.

7. The question that now arises in relation to the stand taken by Mr. Rahman is whether in view of the fact that what the petitioner complains against is a breach of a rule as dis tinguished from a breach of a provision in a statute he should be held to be entitled to any relief in the face of the decision of their Lordships of the Privy Council in Rangachari v. Secretary of State for India (A I R 1937 P C 27). While considering the applicability of the above mentioned decision it should be borne in mind that the rules that were not enforced in that case did not relate to the competency of the authority which had passed the order but to matters of procedure. It need hardly be emphasized that breach of a rule of procedure in a departmental inquiry is a thing vitally different from the incompetence of the authority which passed an order, and the position does not change in the least by, reason of the fact that the competence to pass an order may have been dealt within rules and not in a statute. Nor can the respondents benefit from the decision of a Division Bench in Muhammad Ismail v. Punjab Province (P L R 1956 (1) Lah, 213; P L D 1956 Lah. 129) which affirmed my' decision in Muhammad Ismail v. Punjab Province (P L R 1953 Lah. 771; P L D 1953 Lah. 424) because in that case too what 'was complained against was not the incompetence of the authority which had passed the order which was subjected to an attack in Court but an entirely different matter which had been provided for in rules and not in the statute under which the rules were made. Mr. M. A. Rahman, learned counsel for the respondents, urged that as the officer who passed the impugned order had held that the petitioner was an undesirable person, the discretionary power to issue a writ should not be exercised in favour of the petitioner even if his complaint, that the impugned order was passed by an authority incompetent to pass it, were genuine. The law is that in proceedings of the present type a Court is not concerned with the correctness or otherwise of an order passed in department proceedings and all that it has to concern itself with is whether the order was valid or not. As the Court cannot go into the correctness of the impugned order it will be unfair to the peti tioner if the Court were to assume that the order was correct and on that assumption refuse him the discretionary order in the form of a writ. I have no hesitation in holding that if the impugned E order was bad in law, the petitioner would be entitled to have a writ issued by this Court. .

9. The plea that the termination of the service of a person on probation did not amount to either dismissal or removal from service may now be dealt with. The position of a person who has been taken on probation is that he is in service but his service is subject to the condition that it will attain a sure footing only if during the period that he is on probation he shows that he is At person to be retained in service. No one can doubt that a person who is on probation is subject to all checks to which permanent servant is subject. He cannot, for example, refuse to obey orders, keep his own hours of duty, or indulge in any malpractice. Reliance in support of the plea that the termination of the service of a Government servant who was on probation did not amount to either removal or dismissal from service was placed on Federation of Pakistan v. Riaz Ali Khan (P L D 1958 Lah. 22). The decision relied upon is to the effect that the termination of the service of a person who was on probation did not amount to removal or dismissal from service and for that reason that part of section 240 of the Government of India Act, 1935, which enjoined that no person in the civil service of the Federation of Pakistan or one holding a civil post under the Government of Pakistan could be removed or dismissed from service without his being afforded an opportunity to show cause against the action proposed to be taken was not applicable to his case. What was said does not amount to saying that in no case could the termination of the service of a Government servant on probation amount to, removal or `'dismissal from service. In my view the termination of the services of a Government servant, for the purposes of the provisions making an inquiry necessary, can be divided into four categories, namely, dismissal from service, removal from service, termination of service in terms of the contract between the Government and the employee and the termination of service during the period o probation: The terms "dismissal" and "removal from service" have attained technical meanings for the purposes of public services Dismissal from service, which is invariably the result of proved misconduct, ordinarily debars the person dismissed from future employment under Government Removal from service generally results from some fault but does not debar the parson from future employment under Government. Termination of service in terms of the contract though it may have resulted from, a fault of the employee, does not amount to removal or dismissal from service unless the order terminating the service mentions that the terms o the contract were enforced because the employee had been guilt of misconduct. Termination of service during the period of promo tion does not amount to either removal or dismissal from service unless the order terminating the service mentions that it was termi nated because of misconduct of the employee. Ever since the first o April 1937, when some parts of the Government of India Act, 1935, came into force the law has contained statutory provision that no order of removal or dismissal from service can b passed without affording the person affected an opportunity to show cause against the action proposed to be taken against hi If the termination of service of a person employed by Government on contract is expressed to be either removal or dismissal fro service, the rule of affording an opportunity to show cause against the action contemplated will apply as in an ordinary case o removal or dismissal from service and the position will be precise the same when the Government servant whose services are to be terminated is on probation for a stated period. If, however, the services of a person engaged by Government on a contract are terminated for no misconduct on his part but purely in terms of the contract he entered into, no opportunity to show cause against the termination of service need be given to him and the position is the same in cases of person on probation. It follows, therefore, that the decision in Federation of Pakistan v. Riaz Ali Khan cannot but be held to have laid down the law correctly because all that it said was that termination of the service of a Government servant on probation did not amount to either removal or dismissal from service. It does not, however, follow from that decision that the provisions of law which enjoin that a person in any of the civil services of Pakistan or holding a civil post under Government in Pakistan could not be removed or dismissed from service by an authority lower than the one that made the appoint ment did not apply to cases in which service is terminated during the period of probation. I have shown in an earlier part of this paragraph that a person who is employed on probation in service just as much as a person who holds a permanent post and I have no hesitation adding that as long as the law is as it is at present, an order of termination of service of a person who is on probation cannot be passed by an authority lower than the one that made the appointment because the termination of service during probation though it does not debar the person so affected from future, employment under Government has the same result as removal from service. I might add that rules regarding removal and dismissal from Government service when providing for inquiries almost invariably mention that termination of service during pro bation is not to be regarded as either removal or dismissal from service for the purposes of rules which enjoin the necessity of an inquiry.

9. But even if the plea that the termination of the service of a person on probation does riot amount to removal or dismissal from service and, consequently, the provisions of law which enjoin that an authority lower than the one which made the appointment cannot pass an order of removal or dismissal from service does not apply to a case of termination of service of a person on proba tion be accepted as correct the petitioner cannot be adversely affected. The reason for this view is that Rule 12:8 of the Punjab Police Rules, which has been reproduced in paragraph 4, is clearly to the effect that the services of an Assistant Sub‑Inspector of Police cannot be terminated by an authority lower than the Deputy Inspector‑General of Police in whose range he is working and as the rule deals with competency of making so serious an order as the termination of the service of a Government employee, Court: Will not but enforce it.

10. Another contention which Mr. M. A. Rahman, learned counsel for the respondents, raised in defence of the impugned order was that as the petitioner had appealed to the Deputy Inspector‑General of Police, who had dismissed the appeal, and that the petitioner had also sent an application to the Inspector General of Police, which too had been dismissed, it should be held that the impugned order was passed by the Deputy Inspector-General of Police if not by the Inspector‑General of Police, and Rule 12.8 of the Punjab Police Rules could not be said to have been violated, even if the order of appointment was passed by the Deputy Inspector‑General of Police, Multan Range, and it could not be said that the impugned order was passed by an authority lower than the one which had made the appointment of the petitioner. The argument is but specious and cannot stand critical scrutiny. If the petitioner had not appealed, the order of termina tion of the service of the petitioner would have been that of the Superintendent of Police, Montgomery and I do not see how that position can change by the mere fact that the petitioner presented an appeal to the Deputy Inspector‑General of Police and petition to the Inspector‑General of Police both of which were dismissed. Whatever action the petitioner may have taken to have the impugned order set aside the order remained that of the Superin tendent of Police and did not become that of the Deputy Inspector -General of Police or the Inspector‑General of Police by reason of the petitioner having preferred an appeal against it to the former officer and having sent a representation to the latter officer. Precisely the same argument as raised by Mr. M. A. Rahman was raised in the case reported as Suraj Narain Anand v. The North West Frontier Province (A I R 1942 F C 3) but did not find favour with the learned Judges who heard the case and was repelled mainly on the ground that a person who is dealing with a departmental appeal does not devote to the matter under , consideration the attention and care which he would have done if he knew that the responsi bility to terminate the service of a person was entirely his and the decision of the Federal Court in Suraj Narain Anand v. The‑ North West Frontier Province was affirmed by the Judicial Committee of the Privy Council in North‑West Frontier Province, v. Suraj Narain Anand (P L D 1949 P C 1) to which a reference has been made in another connection in paragraph

5. Consequently, I' have no hesitation in holding that if the impugned order was invalid on the ground that it was passed by au authority lower than the one which had made the appointment, it did not become valid by reason of the fact that it was upheld on appeal by the authority which had made the appointment.

11. In view of what I have said above, I have arrived at the conclusions that the petitioner was appointed to the service by the Deputy Inspector‑General of Police, Multan Range, that the termination of the service of the petitioner during his three years' period of probation amounted to his removal from service for determining the authority for passing the order, that the order of removal from service passed by the Superintendent of Police, Montgomery, offended against provisions of the law to the effect that an authority lower than the one that made the appointment could not remove or dismiss a public servant from service, that even if the appointment was made by the Superintendent of Police, Multan, Rule 12.8 which occurs in Chapter XII of the Punjab Police Rules, 1934 (1957 Edition), applied to the case and an authority lower than the Deputy Inspector‑General of Police, Multan Range, could not terminate the services of the petitioner and that Rule 12.8 above‑mentioned will apply even if the termination of the service of the petitioner did not amount to removal or dismissal from service. The result of the above findings is that the impugned order of the Superintendent of Police, Montgomery, must be held to be ultra vires, and consequently the petitioner, must be declared not to have been validly removed from service. I would, therefore, accept the petition and granting the petitioner the above declaration would direct that he shall have his costs from the respondents and may realise them from any of them. ANWARUL HAQ, J.‑‑I agree. A. H.