1. This revision under section 115, C. P. C. Is directed against the judg--ment, dated 30th July, 1975, passed by the learned III Additional District Judge, Hyderabad, in the appeal filed by the applicant against the judg--ment and decree dated 3rd September, 1973 passed against them by the learned III Extra-Joint Civil Judge, Hyderabad, in the suit filed by the respondent.
2. The relevant facts are that the respondent Abdul Wahab Khan, being a final optee from the B. B. & C. I. Railway in India, joined N. W. Railway m Pakistan in the year 1947 as an Assistant Station Master.
3. He served in that capacity till he was promoted in July, 1954, as Junior Station Master Grade-1. He was thereafter promoted in December, 1959, as Relieving Station Master with Headquarters at Hyderabad and was lastly posted as Station Master at Khathar in April, 1968, drawing a pay of Rs.
4. 350 per month. On 16th September, 1968 he underwent a periodic vision test to which he was unfortunately declared unfit in A-2 and A-3 tests but fit in B-1 test with glasses. The respondent thereupon made au application dated 1st October, 1968 to the D. P. O., Karachi Division, Karachi, for absorbing him as S. T. E. (Special Ticket Examiner) Grade-II or T. C (Ticket Collector) Grade-III. The applicant, however, offered him a post of Goods Clerk Grade-II only with pay of Rs. 225 per month, as against Its. 350 per month drawn by him in his last post. The respondent thereupon made a representation dated 9th June, 1969 to the applicant representing that he was entitled to a suitable post carrying pay and scale equal to that he was last holding and since the post of a Goods Clerk Grade-II carried lower scale and pay it was not acceptable to him. He further claimed that he was entitled even to a Class II Job under the incentive scheme as he had passed B. A., LL. B. Examination while in service of the applicant.
5. The applicant in reply wrote to the respondent on 26th July, 1969 either to accept the post of a Goods Clerk offered to him or else his case would be settled up. The respondent thereafter made several representa--tions, dated 27th August, 1969; 19th November, 1969, 9th March, 1970 and 27th June, 1970 to the authorities of the applicant Board but received no response. Ultimately, the respondent received a letter dated 8th July, 1970 from the D. P. O. Intimating him that he stood retired retrospectively from 12th June, 1969. On receiving such letter, the respondent filed appeal before the Divisional Superintendent Karachi on 29th July, 1970. The respondent thereafter received no intimation regarding hearing of his appeal till he was informed by the D.P.O. By his letter, dated 29th July, 1970 that his appeal had been dismissed. The respondent thereupon served statutory notice under section 80, C. P. C. On the applicant and thereafter, on receiving no response from the applicant, filed the suit seeking declara--tion that his retirement was illegal, void and without lawful authority as he had not made any application for retirement, that no notice was given to him by the applicant before retiring him, that the possibility of employ--ing the respondent is some other suitable post with equal pay and scale was not considered by the applicant as required by the Rules. And that under the law he could not be retired on 8th July, 1970 retrospectively with effect from 12th June, 1969. He further claimed that the appeal filed by him before the Divisional Superintendent Karachi was illegally decided by the D. P. O. Against whose order the appeal has been filed. In addition, the respondent also claimed the relief of permanent injunction directing the applicant to absorb him in a suitable post carrying equal pay and scale to that lastly held by him on 19th June, 1968.
6. The applicant contested the suit and in their written statement pleaded that according to the policy framed by the Vice-Chairman Pakistan Rail--way, Lahore, vision failed Station Masters were not eligible for absorption as S. T. E. Grade-II or T. C. Grade-III, and that the post of Goods Clerk offered to the respondent did not amount to his reduction in rank, he being partially incapacitated employee. In addition, they also raised the pleas of the suit being not maintainable, barred by limitation and lack of jurisdic--tion in the Court to try the suit.
7. On the aforesaid pleadings of the parties, the trial Court framed the following issues, out of which Issues Nos. 5, 6, 7 and 9 were construed to be the main issues :-
(1) Whether the suit is not maintainable ?
(2) Whether the suit is barred by limitation of time ?
(3) Whether the plaintiff's qualification in his present Railway, i. e. B. B, & C. I. Railway were equivalent to P-3 course of this Railway
(4) Whether the plaintiff has qualified P-3 course, after promotion as Station Master (Grade-II) ?
(5) Whether the plaintiff was not eligible for absorption as S. T. Es. (Grade II) or T. C. Rs. (Grade III) ?
(6) Whether the order of retirement of plaintiff was not legal and proper ?
(7) Whether the defendants duly considered the possibility of employ--ing the plaintiff usefully as required under the rules of Pakistan Railway Code ?
(8) Whether the appeal filed by the plaintiff was decided by defendant No. 4 after affording an opportunity to the plaintiff of being heard. If not, what is its effect ?
(9) Whether the plaintiff is entitled to be absorbed in the alternative post of equal pay and rank by the defendant ?
(10) What should the decree be ?
8. The respondent examined himself and produced number of documents as Exhs. 41 to 47 and closed his side. The applicant on their side examined their Clerk, namely, Mirza Nafiz Beg and closed their side.
9. The trial Court gave its finding in favour of the plaintiff/respondent on all the issues, including the main issues. The learned trial Judge held to the effect that in view of rule 3 of section 5 of Chapter I of Personnel Manual General, N. W. Railway, every endeavour had to be made by the applicant to provide alternative suitable post to the plaintiff/respondent as his partially failing in the vision test, but no such effort was made by the applicant to provide him with a suitable post, that the plaintiff/respondent was eligible for, appointment to the post of S. T. E. Grade-II or T. C. Grade-III and should have been absorbed in any of the said posts which were available at that time, that the post of Goods Clerk with the pay of Rs. 225 per month offered to the respondent was much lower in rank and pay of Rs. 350 per month drawn by the respondent as a Station Master and that the retirement of the plaintiff/respondent was, therefore, in violation of the Rule and illegal, and, accordingly decreed the suit as prayed by its judgment dated 3rd September, 1973.
10. Being aggrieved by the judgment and decree of the trial Court, apple--cant went in appeal wherein the learned III Additional District Judge, agreed with the finding of the trial Court on all the issues excepting the finding on issue No. 6 regarding legality of retirement of the respondent. The learned Additional District Judge held on this issue that since the plaintiff/respondent was declared medically unfit as Station Master, the applicant could order his retirement. Accordingly, while setting aside the finding and decree on the Issue No. 6 only, he maintained the finding and the decree of the trial Court on all other issues by his judgment dated 30th July 1975. Hence this Revision.
11. Mr. Abdul Matin, learned counsel for the applicant, contended that under rule 3 of section 5 of Advance Chapter No. 1 of Personnel Manual General of N. W. Railway, the applicant Railway Board was required only to make efforts in finding a suitable post for the plaintiff/respondent on his failure in the vision test and inasmuch as the respondent was in fact offered a post of Goods Clerk Grade II with a pay of Rs 225 per month which he refused to accept, the applicant had fulfilled the requirements of the rule and, therefore, the finding of the two Courts below that no efforts were made by the applicant in the finding a suitable post of equal rank and scale for the plaintiff/respondent in compliance with the requirements of the said Rule was erroneous and not sustainable in law, and the suit should have been dismissed.
12. In view of the contention raised, the short question for consideration in this revision is whether the applicant had made efforts in finding an alternative suitable post for the respondent after he was declared unfit in the vision test A-2 and A-3 but fit in B-1 test with glasses ; and whether applicant by merely offering the respondent a post of a Goods Clerk Grade II carrying pay of Rs. 225 per month as against the pay of Rs. 350 drawn by him as Station Master had complied with the requirements of the Rule 3 of section 5 of Advance Chapter No. 1 of Personnel Manual General of N.
13. W. Railway, relevant provisions of which read as under :- "Rule 3(b) (I).-Men incapacitated for service in any class by accident, ill health, failure of eye sight etc.' and transferred to another class.---In such cases no guarantee can be given of their employment as this must depend on vacancies. Endeavours will, however, be made to find for them posts for which they, in this incapacitated state, may be suitable and in which they can be usefully and efficiently employed without risk of injury to themselves, their fellow workers and the traveling public. The pay and seniority of an employee so appointed to a post will be fixed with due regard to the following con--siderations :-
(i) That the appointment made does not in any way deprive an efficient and deserving employee who can reasonably look forward to advancement in that line.
(ii) That the pay of an employee when appointed to a lower grade shall be fixed on the maximum of the grade or on a stage in that grade equivalent to or not below the rate of pay he is actually in receipt of, which ever is less.
(iii) That the appointment will be made on probation for 3 months and he will be retained in that service if his service during the period of probation is satisfactory. If his work is not satisfactory he will be retired as having been physically incapacitated for further service.
(iv) That the employee will rank junior to all in receipt of the rate of pay granted to him on such appointment. After deciding which post an employee is incapacitated for service in a class can be consi--dered for and the rate of pay therein which can be given to him, he will be asked to apply for the post. If he does not apply for the post, he will be granted leave due preparatory to retirement and if, during that period, no better post can be found for him without detriment to the legitimate claims of other staff, he will be retired on the expiry of that leave and granted gratuity/special contribution under the Rules. If however, such an employee refuses to accept a suitable post which may be offered to him and retires with less than 15 years service it shall be open to the Administration to hold that he is not eligible for gratuity/special contribution.
14. Explanation.-A post shall be regarded suitable if it is so considered from the point of view both of the Administration and the employee having regard to its character and rate of pay. A slight and tempo--rary loss of pay in the posts offered shall not of itself render that post as unsuitable.
15. II. The following further instructions are reproduced which are to be applied generally to partially incapacitated staff and in particular to vision failed employees and others incapacitated from their posts as a result of injuries sustained in the course of their duties :- Apart from above, the following further instructions may be applied in the case of staff under reference :-
(a) The absorption of vision failed staff should not be left to chance vacancies but every endeavour should be made to find suitable alter--native appointments for such staff with due regard to the interest of deserving men who may be looking forward to advancement in their own line. Thus if a Driver is working temporarily as a Shedman, he should, revert to the foot plate to provide a Shedman's vacancy for a suitable number of the Loco Running Staff failing in the vision test.
(c) A register should be maintained in the Personnel Branch to watch the interests of such employees. On an employee being partially incapacitated, an entry should be made in the Register as well in his service card under the initials of the Assistant Personnel Officer and when filling up vacancies in appropriate categories, the competent authority should record that suitable employees borne on the register have been duly considered. Such staff should be granted L. P. R. In accordance with the ordinary rules. When, however, the leave due is less than six months it should be extended upto six months by the grant of extraordinary leave. If the employment of such railway servants is within the period of their sanctioned L. P. R. The continuity as well as other conditions of service will in no way be altered, and they will, therefore, be entitled to their former scales of pay, i.e. Old scale, etc. The appointment of a person after the expiry of L. P. R. But within one year of his failure will, however, be treated as re-employment and will, therefore, be on the prescribed scales of pay, but such a person may be allowed on re-employment a higher initial rate of pay equal to the maximum of grade concerned or a stage therein nearest to the rate of pay he was formally in receipt of, whichever is less: save with the approval of the Headquarters Office.
(f) The orders of priority for consideration of partially incapacitated staff for alternative posts should be in accordance with the dates of their being declared unfit for their former posts. If however, a man once refuses an offer on pay not considerably less than his former rate of pay for reasons which cannot be accepted as valid, he will lose his claim to consideration for a future vacancy.
(g) A return in respect of such employees on the pro forma at Appen--dix XII should be submitted annually to the Headquarters office so as to reach by the 21st January."
16. Scrutiny of the above provisions of the Rule would show that while an employee on failing in the vision test cannot hold certain specified posts, it makes incumbent on the railway authorities to make every endeavour to provide him with some other suitable post which is explained by the rule to be a post having regard to its character and rate of pay, providing further that a slight and temporary loss of pay in the post offered shall not by itself render that post as unsuitable. This would, in other words, mean that the post offered will not be considered suitable if it is much less in character and pay to the post the employee was last holding at the time of his failure in the vision test. To show that endeavours have to be made as a matter of positive obligation, the Rule further provides that the absorption of vision failed staff should not be left to chance vacancies but every endeavour should be made to find suitable alternative appointments for such staff and provides for maintaining a register for the purpose in the Personnel Branch to watch their interests and to make entries to it as well as in the service card of the employee and while filling up vacancies in appropriate categories the competent authority has to show by recording that suitable employees borne on the register have been considered. Clause (f) of the Rule further goes to provide that priority for considera--tion of partially incapacitated staff, like the respondent, for alternative posts should be in accordance with the dates of their being declared unfit for their former posts, but if however a man refuses an offer on pay not considerably less than his former rate of pay, he will lose his claim to consideration for a future vacancy.
17. Such being the requirements of the rule, it is now to be seen whether any endeavour was made by the applicant authorities in providing the respondent with an alternative suitable post in terms of the above requirements of the rule.
18. It is an admitted position that the respondent on being declared unfiit in the vision test in Class A-2 and A-3 but fit in B-1 with glasses, made several representations and applications to the applicant authorities for his being absorbed in the post S. T. E Grade-II or T. C. Grade-III which he alleged were available at that time and he was entitled to under the Rule, and, in support, quoted an example of a similarly vision failed Station Master Shoukat Ali who was provided with the post of S. T. E. Grade-II.
19. But all that the respondent received in reply was letters dated 29th April, 1969 and 26th July 1969 from the Divisional Personnel Officer simply asking him to accept the post of a Goods Clerk Grade- II with pay of Rs. 225, without saying a word whether the posts claimed by the reason--dent were not available or that he was not eligible for the same. There--after, when he had failed to get the relief and was driven to file the suit, he reiterated all the abovesaid assertions in his plaint as well as in his evidence and was successful in establishing them not only through his evidence but also through the evidence of the applicant's own witness Nafees Beg, who admitted in his evidence that there were higher grades for Goods Clerk and that there was also a grade of Rs. 350 for it. This witness further admitted that no letter was issued by the applicant Department to the respondent stating that no such equivalent job was available for him at the time. Further, the applicant also, while dealing with the abovesaid assertions by the respondent, did not plead in their written statement that any endeavour- had been made by them for finding a suitable post for the respondent. All that they stated in paras. 5 and 9 of the written statement was that according to the Policy framed by the Vice Chairman of the Railway Board vision failed Station Masters were not eligible for absorp--tion as S. T. E. Grade-II or T. C. Grade-III. However, no such policy letter was disclosed by them in the pleadings nor was it produced by them in their evidence through their witness Nafees Beg to substantiate their stand. On the contrary, the judgment of the trial Court would show that the learned counsel appearing for the applicant in the trial Court had as much as conceded before the Court that the respondent was eligible for absorption as S. T. E. Grade-II or T.
20. C. Grade-III. Indeed, the learned counsel appearing for the applicant in this Court also had to admit that excepting the applicants offering the respondent a post of Goods Clerk Grade-II with a pay of Rs. 225 by their letter dated 29th April, 1969, no other evidence was brought on record to show either that any effort was made by the Department to find an alternative suitable post for the respondent as required by the Rule or that the respondent was not eligible for absorption in either of the said two posts or that none of the said posts was available at that time. Such being the case, it cannot be legiti--mately maintained that the applicant had complied with the provisions of the Rule by simply offering the respondent a post of a Goods Clerk Grade-II with a pay of Rs. 225 per month which indeed, was consider--ably less in character as well as in pay from the post of Station Master with a pay of Rs. 350 per month, which the respondent last held when he was declared unfit in vision test A-2 and A-3 but fit in B-1 with glasses. That being so, the Courts below were perfectly justified and well within their rights in giving the stated finding. Further, the two Courts below having given the concurrent finding on the basis of the material brought on record, it will neither be appropriate nor open to this Court to interfere B with their concurrent finding in this Revision under section 115, C. P. C. Which lies against any jurisdictional illegality committed by a subordinate Court, which is not the case here. The contention of the learned counsel for the applicant is, therefore, repelled.
21. There lastly remains the question whether the learned first appellate judge, after having concurred in the abovesaid finding of the trial Court, was justified in holding on Issue No. 6 that the respondent was rightly retired. It would appear that the first appellate Court in giving the said finding laboured under the misapprehension, as if, on the failure of the respondent in the vision test, he stood automatically retired under the Rule. The reference to the abovesaid provisions of the rule would, however, show that such is not the position under the rule. It is only if the Railway Department had made efforts in finding a suitable post as required by the Rule and either not found it or had offered it to the reason--dent by asking him to apply for it but he had failed to do so, that he could be retired under the said Rule. That this is so, was admitted also by Mr. Abdul Matin, learned counsel for the applicant. That being so, after having concurred in the findings to the effects that no efforts were made by the applicant as required by the Rule in finding a suitable post for the respondent and that the latter was eligible to hold either of the posts of S. T. E. Grade-II and T. C. Grade-III which were not shown by the applicant to be not available at the time, the learned Additional District Judge was not justified in holding that the retirement of the respondent was legal and thus acted with material irregularity in interfering with the finding of the trial Court on the said Issue No. 6.
22. Consequently, the finding of the first appellate Court on issue No. 6 is set aside and that of the trial Court is restored, it not being disputed by the learned counsel for the applicant that this could be done by this Court in exercise of its powers under sec--tion 115, C. P. C. When the whole case is open before it, to view of PLD 1975 SC 678 and PLD 1969 Kar. 17.
23. For the aforesaid reasons, while setting aside the finding of the first appellate Court on the Issue No. 6 and restoring that of the trial Court on the said issue, I dismiss this revision and maintain the judgment and decree passed by the trial Court in terms thereof. In the circumstances of the case, I leave the parties to bear their own costs.