1969 PLP 217 (SCMR)

QADEERUDDIN AHMAD, J.‑Petition No. 310 of 1966, which the petitioner had filed in the High Court under Article 98 of the Constitution, was dismissed by a Division Bench on the 3rd of April 1968.

2. The facts which form the background, briefly stated, are that the post of Technical Assistants having been abolished, the petitioner was found to be surplus to the requirements of the Directorate‑General of National Manpower Council and was informed, vide an office memorandum dated the 28th of February 1966, that his services were no longer required after the expiry of three months from the date of the memorandum. The petitioner made representations and submitted appeals, and ultimately filed a constitutional petition bearing No. 310 of 1966, praying in it that the notice dated the 28th of February 1966, be declared to be without legal authority, and of no legal effect and that directions be issued to the Secretary, Ministry of Labour and Social Welfare Division as well as the Director‑General, National Manpower Council, to firstly allow the petitioner to continue in service, and then to‑ transfer his services to the Provincial Government, as well as regularize his pay according to the recommendation of the Pay Commission. That petition having been dismissed, as mentioned above, the petitioner has applied for leave to appeal to this Court.

3. The main contention of the petitioner is that he occupied the post of a Chief Instructor, and not that of a Technical Assistant, but happened to be temporarily discharging the duties of a Technical Assistant in 1954. Since he was not working, as a Chief Instructor, the memorandum of confirmation which is dated the 22nd of November 1954, has been interpreted to mean that he was confirmed as a Technical Assistant, and not as a Chief Instructor. This interpretation, according to the petitioner, is wrong for two reasons :‑ Firstly, because the memorandum of the 22nd of November 1954, purports to operate retrospectively from the 1st of December 1949, on which date he was not working as a Technical Assistant, and could not do so, because the post of a Technical Assistant was created much later than 1949. Secondly, according to the petitioner, he was assigned from 4‑7‑1951, the work of a Technical Assistant temporarily, after withdrawing him from the post which he was holding in the Pilot Instructors Course at Karachi, vide memorandum of the Government of Pakistan, in the Ministry of Labour, Manpower and Employment. It was only this temporary assignment which was subsisting on the 22nd of November 1954, when he was confirmed. In these circumstances, the confirmation should not be taken, according to the petitioner, to be related to the temporary work which he was doing, but to the substantial duties of a Chief Instructor which he was performing in December 1949, and July 1951.

4. The petitioner has explained that owing to the above mentioned misunderstanding, he was declared to be surplus when the Technical Training Centres were transferred, vide the letter of the Government of Pakistan, Ministry of Health, Labour and Social Welfare dated the 10th of May 1962, to the Provincial Government, and the post which he was occupying was treated as abolished. His contention is that the post which he was occupying could not be said to have been abolished by virtue of the transfer of the Training Centres to the Provincial Govern ments, if he was recognised to be a Chief Instructor, and not a Technical Assistant. But if he is treated as a Technical Assistant, and it is held that the technical centres were transferred en‑block to the Provincial Governments, then his services should also be taken to have been automatically transferred to the Province of West Pakistan. In either case, according to the petitioner, he cannot be deprived of service.

5. The petitioner has commented on the judgment of the High Court dated the 3rd of April 1968, from the above points of view, and has argued that the references which are found in it about the exercise of option and attempts of the Central Government to get the petitioner absorbed in an alternative post, were irrelevant, nor is there any explanation, according to him, as to how the retention of his services by the Central Govern ment, even if it was due to the exigencies or requirements of public service, can be justified if this action was harmful to the interest of the petitioner.

6. In explanation and support of the above considerations, the petitioner referred to several documents and we have looked through his service record which we have received from Govern ment, and feel that the facts on which he relies and the contentions which he raises are too many and too controversial to form a proper subject‑matter for examination in exercise of A jurisdiction under Article 98 of the Constitution. The learned Judges of the High Court, according to us, could not be expected to hold a full‑fledged trial to the entire satisfaction of the petitioner. We, therefore, consider that the petitioner may seek his remedy by way of a suit, and dismiss this petition. Leave refused.