P L D 1969 Peshawar 299 (PLP)

QAISAR KHAN, J.

‑ Ghulam Moinud Din, substantive Tehsildar was promoted as Officiating Extra Assistant Commissioner vide Government of West Pakistan Services and General Adminis tration Department Notification No. SP. 7‑76/56 (SOX), dated 5‑3‑1960, which runs as follows:‑ "(1) The Governor of West Pakistan is pleased to appoint Mr. Ghulam Moin‑ud‑Din, Teshildar, Haripur as officiating Extra Assistant Commissioner, and to place his services at the disposal of the Commissioner, Peshawar Division. (2) The appointment is provisional and subject to the concurrence of the West Pakistan Public Service Commission. If the public Service Commission do not concur, he will be reverted as Tehsildar. (3) The officiating appointment of the above officer as Extra Assistant Commissioner, will further be subject to the inclusion of his name in the `Select List of Tehsildar fit for appointment as Extra Assistant Commissioner" and will not give him any claim to permanent absorption in the Provincial Civil Service nor to seniority in the service over senior Tehsildar/ Naib Tehsildars." In pursuance of the aforesaid notification, the Commissioner, Peshawar Division appointed him as Officiating Treasury Officer, Mardan vide his order, No. 7759‑50/GA, dated 19‑8‑1960, which runs as follows: "In pursuance of Additional Chief Secy : to Government of West Pakistan, Lahore order No. 7‑76/56‑(SOX), dated 5‑3‑1960, Mr. Ghulam Moin‑ud‑Din Tehsildar on leave is hereby promoted and appointed as officiating Treasury Officer, Mardan with immediate effect. The Remaining portion of his leave is hereby cancelled." Since then Ghulam Moin‑ud‑Din has been working on various posts in the P. C. S. cadre.

2. On 18‑5‑1968 vide Government of West Pakistan Services and General Administration Notification No. SP‑7‑377/56 (SO.XI) the Governor of West Pakistan was pleased to order the demotion of Mr. Ghulam Moin‑ud‑Din from the P. C. S. (Executive Branch). The notification runs as follows:‑ "On the advice of the Public Service Commission, Governor of West Pakistan is pleased to order the demotion of Mr. Ghulam Moin‑ud‑Din of Group 'D' from PCS (EB) who in the past had been promoted in an ad hoc and officiating manner subject to the concurrence of the Public Service Commission."

3. On 30‑5‑1968 Ghulam Moin‑ud‑Din who was then posted as Treasury Officer, Peshawar filed this writ petition against the Government of West Pakistan through the Additional Chief Secretary and the Commissioner, Peshawar Division under Article 98 of the Constitution of the Islamic Republic of Pakistan of 1962 for quashing the orders of respondent No. 1, dated 18‑5‑1968, whereby the petitioner was ordered to be demoted from the P. C. S. Executive Branch. Counsel for the parties heard. Only two points were urged by counsel for the petitioner:‑ (1) That no condition was attached to the petitioner's promotion and appointment, and that since no period for his probation was fixed, he had automatically become confirmed after having served for a period of eight years and could not be demoted. (2) That even if the petitioner was not a confirmed P. C. S. Officer, he was entitled to a show‑cause notice and that his demotion without giving him an opportunity of hearing was against the principles of natural justice.

4. For the first point, counsel for the petitioner relied on rule 8 of the West Pakistan Civil Service (Executive Branch) Rules, 1964. For convenience sake, the relevant portions of rule 8 are reproduced below:‑ "Rule

8. Probation.‑(1) Persons appointed to the Service against substantive vacancies shall remain on probation for a period of two years, if appointed by initial recruitment, and for a period of one year, if appointed otherwise. (2) . (3) On completion of the period of probation of a mem ber of the Service, the appointing authority may, subject to the provisions of sub‑rule (4) confirm him in his appointment, or if his work or conduct has, in the opinion of such authority, not been satisfactory. (a) in case he has been appointed by initial recruitment dispense with his services; or (b) in case he has been appointed otherwise, revert him to his former post, and if there be no such post dispense with his services; or (c) extend the period of probation by a period not exceed ing two years in all, and during or on the expiry of such period pass such orders as it could have passed during or on the expiry of the initial probationary period. Explanation l.‑If no orders have been made by the day following the completion of the initial probationary period, the period of probation shall be deemed to have been extended. Explanation H.‑If no orders have been made by the day on which the maximum period of probation expires the proba tioner shall, subject to the provisions of sub‑rule (4) be deemed to have been confirmed in his appointment from the date his probation was last extended or may be deemed to have been so extended. (4) His contention was that the petitioner automatically stood confirmed after the expiry of three years after his promotion according to Explanation II.

5. There is, however, no force in this contention of his as the petitioner was never appointed against a substantive vacancy but was promoted in an officiating capacity in a tem porary vacancy under the proviso to sub‑rule (2) of rule 5, and rule 8 has no application in his case. The P. C. S. (E. B.) like any other service has a fixed cadre strength and whenever permanent vacancies occur in the cadre, either by retirement or by the death of permanent incumbents of the cadre posts, these vacancies are filled in according to rule 5, 50 % by direct recruitment and 50 % by promotion from Tehsildars and others. The direct candidates remain on probation for a period of two years and the promoted candidates for a period of one year before confirmation. A Select List of Tehsildars is maintained according to sub rule (5) of rule 5 and promotions to substantive vacancies in the P. C. S. cadre are made from this Select List according to sub‑rule (8) of rule

5. It sometimes happens that temporary vacancies occur in the P. C. S. Cadre when the permanent incumbents are either deputed to posts outside the Cadre, or are promoted in officiating capacity to the Senior scale of the C. S. P. These temporary vacancies are filled in by promotion in an officiating capacity from the Tehsildars in accordance with the proviso to sub‑rule (2) of rule 5, and these promo tions can by no stretch of reasoning be called appointments under rule, 8, sub‑rule (1). The question of confirmation of such like officers by officiation for any length of time, there fore, does not arise, as there exist no permanent vacancies in which they can be confirmed. The petitioner was one such officer and the question of his confirmation by officiation, therefore, did not arise. The Civil List of 1961 was perused, which revealed that there were more than 20 such like officers who were senior to the petitioner in the Tehsildars' cadre and who had been promoted to the P. C. S. posts in an officiating capacity long before the petitioner. Now if the argument of the counsel for the petitioner is accepted, then all these officers shall have to be treated as substantive members of the cadre, and in that case the member of the confirmed P. C. S. Officers would be almost double the strength of the P. C. S. cadre.

6. Counsel for the petitioner next contended that since respondent No. 1 had admitted that the petitioner on promo tion had been appointed against a permanent post, the case of the petitioner was covered by rule

8. This contention of the learned counsel for the petitioner is fallacious. There is nor doubt that the post of Treasury Officer Mardan to which the petitioner was first appointed was a permanent post but the vacancy in which the petitioner was appointed was not a per manent one. Rule 8 refers to appointments against substantive C vacancies. Appointment to substantive vacancies are made according to rule 5, either by direct recruitment, or by promotion from the Select List. The petitioner was neither a direct recruit neither on the Select List and nor was he appointed in a substantive vacancy.

7. Even if the N.‑W. F. P. P. C. S. (E. B. Recruitment, Pay and Appointment) Rule of 1940 are applied in the case of the petitioner, his position is no better. Appointment according to rule 1 (a) of the N.‑W. F. P.,. Recruitment Rules includes:‑ (i) Appointment to be a substantive member of the Civil Service (Executive Branch); and (ii) appointment to be a Provincial Civil Service (Executive Branch) candidate. A Select List of Tehsildars is prepared and maintained according to rule 10 of the N. W. F. P. Pay and Appointment Rules of 1940. Candidates to the P. C. S. are appointed directly under rule 6 and from the Select List under rule 5 of the Recruitment Rules. These appointments are in consulta tion with the Public Service Commission according to rule

2. Substantive appointments to the P. C. S. Cadre are then made from these candidates in a certain ratio according to rule 4 of the 'Recruitment Rules. There is no rule at all in the N.‑W. F. P. Rules for the automatic confirmation of any officer by officiation for any length of time. The case of the petitioner is evidently not covered by any of the N. W. F. P. Rules mentioned above. We, therefore, repel the arguments of the learned counsel for the petitioner by holding that the petitioner was not a substantive member of the P. C. S.

8. So far as the second point of the learned counsel for the petitioner is concerned, his contention was that even if the petitioner was an officiating P. C. S. Officer, his demotion amounted to reduction in rank, and be was, therefore, entitl ed to a show‑cause notice. For this he relied on Noorul Hassam and others v. The Federation of Pakistan (P L D 1956 S C (Pak.) 331), Abdul Majid Sehikh v. Mushaffe Ahmed, Section Officer, Government of Pakistan, Ministry of Defence, Karachi and another (P L D 1965 S C 208) and Muhammad Seraj v. Pakistan and others (P L D 1967 Dacca 820). These authorities, however, have no application in the present case, as in the said authorities the petitioners had been temporarily appointed to their respective posts for an indefinite period and their services were totally dispensed with. In the present case, the petitioner was only promoted in an officiating capacity in a temporary vacancy and reverted to his substantive post according to the terms of his promotion. His promotion was provisional subject to the approval .of the Public Service Commission and subject to his name being brought on the Select List. The Public Service Commission did not even approve of his temporary promotion in view of his record and his name was not brought on the Select List. In the circumstances, the petitioner had to be reverted to his substantive post, which was one of the condition of his officiating promotion. In P L D 1956 S C (Pak.) 331,1 referred to above, it has been clearly stated by mey Lord the then Chief Justice Muhammad Munir that the question of show cause notice would arise only if the termination of the appoint ment was not in accordance with the terms of the employment. In the present case the action was strictly in accordance with the terms of the order of promotion of the petitioner.

9. On the other hand, reliance was placed on Pakistan and another v. Qazi Syed Hikmat Hussain (P L D 1959 S C (Pak.) 107), The Province of East Pakistan v. Muhammad Sajjad All Mazumdar (P L D1962 SC 71), Syed Zawwar Hussain Shah v. Province of West Pakistan (P L D 1968 Kar.693), Muhammad Mumtaz Khan v. Government of West Pakistan (P L D 1968 S C 357), Muhammad Umar v. Malik Hakam Khan and another (P L D 1968 Lah. 1093) and Badrul Hague Qureshi v. Province of West Pakistan (1969 S C M R 244). P L D 1959 S C (Pak.) 107 lays down that if an officer is appointed in an officiating capacity even until further orders, the Government can terminate his appointment at any time and revert him to his substantive post. The officiating appoint ment gave no vested right and their was no question of reduction in rank in such a case and no show‑cause notice was necessary. The position of the present petitioner was worse than the petitioners in the aforesaid case as the present petitioner was promoted subject to a number of conditions.

10. P L D 1962 S C 71 also clearly lays down that reverting an officiating Government servant to a substantive rank did not amount to reduction in rank. Similarly, P L D 1968 Kar. 693 lays down that promotion appointment purely as a stop‑gap arrangement could not be equated with promo tion appointment on probation and such an officer had no lien on the higher post and reversion in such a case did not amount to reduction in rank. According to P L D 1968 S C 357 a Class II Officer appointed in a temporary capacity to a Class I post on specified terms could be reverted to his original post according to the terms of his appointment even if the appointment was for an indefinite period, and the question of reduction in rank was not involved. In that case, the petitioner bad been appointed with the approval of the Public Service Commission. In the present case, however, the promotion of the petitioner was subject to the approval of the Public Service Commission which was withheld by the Commission.

11. P L D 1968 Lah. 1093 lays down that a temporary employee had no right to file a writ petition under Article 98 of the Constitution, questioning the termination of his temporary employment. In the present case the promotion of the peti tioner was purely temporary and only his temporary appointment had been terminated. In view of this authority, the petitioner could not, therefore, question his reversion by writ petition under Article 98 of the Constitution. The Supreme Court has laid down in explicit terms that reversion from an officiating rank to a substantive did not constitute reduction in rank 1969 S C M R

244. In the reported case, however, there were no conditions attached to the officiating appointment, but in the present case the officiating. promotion was subject to a number of conditions. In view of all these authorities, we are, therefore, firmly of the opinion that the reversion of the petitioner to his sub stantive rank in accordance with the terms of his appointment did not amount to reduction in rank, and the question of giving him a show‑cause notice, therefore, did not arise. The second contention of the learned counsel for the petitioner is, therefore, also repelled. The net result is that there is nothing in the petition which is dismissed with costs. Pleader's fee Rs.

200. A. E. Petition dismissed.