P L D 1957 (W (PLP)

KAYANI, J.‑

Mr. Fida Muhammad Khan, who was an officiating Superintendent in the Sind Secretariat before Integration, feeling aggrieved against an order posting him as Superintendent in an Attached Department, namely, the Rehabilitation Office, has brought this petition under Article 170 of the Constitution for an appropriate writ directing the West Pakistan Government "to consider his seniority and continuous service in the grade and to post him as a Superintendent in the West Pakistan Secretariat proper". The petitioner says that he was a permanent Senior Assistant in the Sind Secretariat and had been promoted to the grade of Superintendent in which he had officiated continuously since 21st October 1953. Upon Integration, he was declared "surplus" and posted to a second class office while his colleagues in the West Pakistan Civil Secretariat are gazetted officers. They receive certain allowances of which he has been deprived, and above all, he has been robbed of the prospects of promotion to the posts of Assistant Secretary and Under Secretary which are incidental to service in the Secretariat proper. Of these colleagues, four were junior to him in the Sind Secretariat and twenty‑two (who belonged to the former Punjab and N.‑W.F.P. Secretariats) were junior to him by virtue of the declared policy of Government that "seniority. for the specific purpose of integration, has been determined with reference to continuous service in the grade concerned, regardless of confirmation". In para. 9 he makes a reference to the " question of quota " without explaining it, but what he apparently means is that if those twenty‑two persons were preferred to him on the ground that they fell within the quota allocated to each Provincial Secretariat, then his reply was that " the question of quota does not arise " because "representation and ratio are fixed in initial appointments and not in subsequent promotions". The petitioner also complains that his present post is "transferable" and, further, that the post of a Secretariat Superintendent is more "honourable" than his present post. In short, the order impugned is in contravention of section 8 (3) (a) of the Establishment of West Pakistan Act, 1955, as his "conditions of service" have become "less favourable" to him than they were in the Sind Secretariat. Since section 8 (3) aforesaid guarantees to all civil servants in the former Provinces conditions of service not "less favourable" than those under which they were serving, ‑notwithstanding that Government was given the power of appointing them to any civil post in West Pakistan‑the only question to be decided in this petition is whether the Petitioner is now serving under less favourable conditions. The question of his seniority will arise incidentally. On behalf of the Government, it is denied that in declaring him surplus the petitioner's seniority was not taken into account. In the Sind Secretariat, it is alleged he ranked sixty‑second in a total of sixty‑eight Superintendents, and the quota allotted to Sind was twenty‑three (later increased to thirty‑four) out ‑ of a total of eighty‑five, which was to be the strength of the new Secretariat. It was because he fell out of the Sind quota that the twenty‑two persons junior to him on the basis of "continuous service" and belonging to other Provinces were preferred to him. As regards the four persons who belonged to the Sind Secretariat, one of them was no longer in the Secretariat, and it was denied that they were junior to the petitioner: "they had superseded the petitioner in Sind because of the latter's consistently bad service record". But even if he were held senior to these four, there were at least twenty‑eight Superintendents senior to him on the Sind list who would have a prior claim to absorption in the new Secretariat. Further, he could not as of right claim to be posted to the Secretariat, as under rule 266 of the Sind Civil Services Manual, Volume 1, the petitioner could have been discharged on having been declared surplus or retired and "he could have exercised the option under the aforesaid rule in case the appointment to which he has been posted was not accept able to him." As regards Secretariat allowances, Government has decided now to extend some of them to other departments also, though it must be pointed out that these do not constitute conditions of the petitioner's service as they came into existence only after integration. Nor do the prospects of promotion form part of a person's conditions of service. Since the petitioner's counsel admitted that there were some twenty‑eight Superintendents senior to him on the Sind list, a determination of his seniority vis‑a‑vis the three persons who have been preferred to him will not be relevant. Nor has it been urged by him with any force that he can claim any seat on the quotas of the Punjab and N.‑W.F.P. We cannot, however, pass this point without questioning the wisdom of promoting Deputy Superintendents and Assistants from those two Provinces for the purpose of making up the Provincial quota, without reference to their years of service. These posts could have been filled temporarily by the surplus men in the same grade until the junior persons in the two Provinces had attained a prescribed majority. Before leaving the question of seniority, we wish to point out that although this is not a determining factor in our decision, if the petitioner's seniority has already been determined vis‑a‑vis the four persons named in paragraph 4 of the petition, it has not been determined correctly. An office order of 24th April 1955, (Exh. P. D.) shows that while the petitioner was confirmed as Senior Assistant with effect from 24th February 1949, two of these four, namely, Mr. Wali Muhammad Beloch and Mr. Munshey, were confirmed respec tively with effect from 15th September and 2nd June 1948, and the other two, Mr. A. T. Kazi and Mr. G. H. Kazi, were con firmed only as Junior Assistants with effect from 1947. This means that on the date of the office order in question, the latter two had not been confirmed as Senior Assistants. This order fixed the petitioner's seniority after making allowance for his war service. In the earlier list the other four persons were senior to him, and on the basis of that seniority they had already been promoted to the grade of Superinten dent when the office order of 6th April 1955 was passed. At the time of confirmation as Superintendent, therefore, he has a right to say, other things being equal, that but for the delay in the decision of his seniority as Assistant, he would have been promoted as Superintendent earlier than these four persons and consequently confirmed earlier. On an examination of the petitioner's service record we have found that "other things" are not so equal but that is a matter for the exercise of discretion by the appropriate authority. Now come we to the main point. The reliance placed on behalf of Government on rule 266 of the Sind Rules is irrelevant, because this is not a case where a post has been abolished in the ordinary course. While the West Pakistan Province was in the travail of birth, its political parents were ceaselessly applying persuasive remedies to palliate the anguish attending all maternity cases and one of these remedies wasp a patent officeacious medicine of the old British firm known as same conditions of service. Consequently, section 8 was formulated and it said that‑leaving apart the tiny detail that there will be no end of journeys and no journey's end between Parachinar and Malir‑the terms and conditions of service in the new set‑up shall not be less favourable than they were before. It is not, therefore, proper advocacy on behalf of the Government to plead role 266 in defence. We have no doubt that when a person is transferred from a first class to a second class office, or to an office where his prospects of promotion become less bright than they were, his conditions of service become less favourable. This term has not been defined so far, though used abundantly since the services came into being, but we all have a fairly correct idea of its meaning, and we will certainly not confine it to any written conditions where certain unwritten conditions are also understood to exist. Thus, although there is no guarantee that an officer recruited to the Civil Service of Pakistan will necessarily become a member of the Board of Revenue in due course, if the Board is abolished and is not replaced by equivalent posts, or if the number of posts on the Board is reduced, the conditions of service of the Officer on question are affected injuriously. This principle eve were able to glean from an old letter of the Government of India (No. F. 272/23‑Ests. dated Simla the 16th September 1926) where the following passage occurs :‑ " The Secretary of State has agreed with the Government of India that the term conditions of service used in section 96 (b) (2) must be held to be a residual term covering everything affecting a service which cannot be brought under the three specific terms used in that sub section, namely (i) methods of recruitment, (ii) pay and allowances, and (iii) discipline and conduct ; and that the number of posts and the actual posts borne on the cadre of a service constitute one of these conditions of service." Section 96‑B (2) of the Government of India Act, 1915, provided that "the Secretary of State in Council may make rules for regulating the classification of Civil Services in India, the methods of their recruitment, the conditions of service, pay and allowances, and discipline and conduct". There is a Running Commentary in the Appendix to the Civil Service (Classification, Control, and Appeal) Rules, made by the Secretary of State under section 96‑B, which contains the following instructive note on Rule 58 '"This Rule differs in the following respects from Rule 50 of the draft enclosed with Mr. Haig's letter, dated the 14th October 1926 :‑ (d) The words `leave, seniority, prospects of promotion or any other matter' have been omitted as unnecessary in view of the decision communicated in paragraph 3 of the Home Department letter No. F. 272/23‑Ests, dated the 16th September 1926, that the term 'conditions of service' in section 96‑B (2) of the Government of India Act covers everything affecting a service which cannot be brought under the three specific terms in that section." In the Sind Secretariat, Superintendents were not gazetted officers. The petitioner's appointment to a second class office, therefore, although not so "honourable" as an appointment in the Secretariat, is not less favourable to him than his post in Sind. But this is not all. The Chief Secretary has informed the Welfare Officer West Pakistan Secretariat (No.2026‑Integ/56, dated 29th September 1956) that "the staff absorbed in the Attached Departments should now look forward to promotions in those departments and there should be no question of their absorption in the Secretariat". If the petitioner had been in Sind, he could hope‑other things again being equal‑to become an Assistant Secretary by the operation of rule 85 of the Sind Civil Services Classi fication and Recruitment Rules, and thereafter an Under Secretary under rule

84. His colleagues in the Civil Secretariat here will similarly thrive. But in the Rehabilita tion Office he has no future, and although Mr. S. K. Ahmad on behalf of the Government broadly hinted that he might look forward to becoming a Rehabilitation Officer, when he is likely to forget all his misfortunes, we do not see how this can happen. We, therefore, hold that by this order of the Chief Secretary, dated the 29th September 1956, the conditions of the petitioner s service have become less favourable than they were in Sind and direct that, where so ever placed, he should be treated as .belonging to the Civil Secretariat, so that his prospects of promotion to the posts of Assistant Secretary and Under Secretary are not closed to him. The petition is accepted with costs. A. H Petition accepted.