ANWARUL HAQ, C. J.--This petition under Article 98 of the Constitution seeks to challenge the correctness and legality of an order made by a learned Member of the Provincial Board of Revenue at Lahore, on the 23rd of August 1967, whereby the petitioner Ch. Nasiruddin was demoted from the post of a Tehsildar to that of a Naib-Tehsildar for a period of two years on account of charges of inefficiency having been proved against him as a result of a regular inquiry held by the Special Judge (Anti-Corruption)-cum-Enquiry Officer. It was directed that his suitability for re-promotion would be considered on the basis of his reports.
2. The relevant facts may briefly be stated. The petitioner joined service as a Field Qanungo in 1947, was promoted to the rank of Naib-Tehsildar on the 1st of February 1954, and later appointed as a Tehsildar (Class "B") by the Provincial Board of Revenue on the 22nd of May 1959. On the 2nd of May 1962 a charge-sheet was served upon him by the Commissioner, Bahawalpur Division, in connection with mutation No, 573, attested by him on the 29th of September 1959 for the correction of the entries appearing in an earlier mutation bearing No, 548 attested on the 12th of June 1952. It was alleged that the petitioner had acted in disregard of the prescribed procedure in correcting the revenue entries evidenced by the earlier mutation. A second charge-sheet was served upon the petitioner on the 18th of April 1964 in respect of the alleged irregular disposal of rent suits coming up before him as a Revenue Officer.
3. The petitioner denied the charges and submitted a written explanation giving the background of the allegations made against him. The explanation was, however, not accepted by the competent authority, and accordingly a regular inquiry was held by the Special Judge (Anti-Corruption)-cum- Enquiry Officer. In his report dated the 22nd of July 1965 the Enquiry Officer exonerated the petitioner of charges involving allegations of corruption or mala fides, but held him guilty of inefficiency in the performance of his duties as a Tehsildar. The report was accepted by the Board of Revenue and a show-cause notice was issued to the petitioner on the 29th of August 1966. After considering the petitioner's reply to the same, Mr. A. H. Qureshi, a Member of the Board of Revenue, West Pakistan, proposed in his order dated the 5th of July 1967 that the petitioner should be reduced in rank to a Naib-Tehsildar for a period of two years. The learned Member was under the impression that it was necessary to consult the Provincial Public Service Commission before finalising the punishment. It, however, transpired that by an amendment carried out in the relevant Regulations on the 18th of May 1965 the Governor of the Province had excluded the post of Tehsildar from such consultation. Accordingly, the punishment proposed by the Member, Board of Revenue, in his order dated the 5th of July 1967, was made final by his order dated the 23rd of August 1967.
4. The petitioner thereupon filed an appeal which was also heard by the same officer in his capacity as Secretary to the Provincial Government in the Revenue Department. and rejected by his order dated the 15th of November 1967. This appellate order was challenged by the petitioner by way of Writ Petition No, 1879 of 1967, which was accepted by a Division Bench of the High Court on the 6th of February 1969. It was held that the officer, who had passed the original order, could not also act as the appellate authority. The petitioner's appeal was, therefore, remitted to the Provincial Government for fresh disposal. The appeal was then considered by Mr. Hassan Turab Ali, another Member of the Board of Revenue and Secretary to the Provincial Government. He rejected the petitioner's appeal by his order dated the 3rd of May 1969, and upheld the punishment imposed on him by Mr. A. H. Qureshi.
5. The legality of the disciplinary action taken against the petitioner is challenged before us on the following grounds:- (a)that consultation with the Public Service Commission was obligatory in terms of Article 186 of the 1962-Constitution, notwithstanding the amendment made in the relevant Regulations by the Provincial Governor on the 18th of May 1965 as the petitioner's terms and conditions of service in this behalf were protected by clause (1) of Article 234 of the Constitution ; and (b)that in any case, the finding of inefficiency recorded against the petitioner was not warranted by the facts and evidence adduced before the Inquiry Officer.
6. In order to appreciate the first contention, it is necessary to refer to the various Articles of the Constitution which are relevant in this context. Clause (b) of Article 176 declares that "a person who is a member of a civil service of a Province, or who, except as a member of an All-Pakistan Service, holds a civil post in connection with the affairs of a Province, shall hold office during the pleasure of the Governor of the Province." However, the pleasure of the Provincial Governor is modified or curtailed by Article 177 which enjoins that a civil servant shall not be dismissed or removed from service, or reduced in rank by an authority subordinate to that by which he was appointed unless that subordinate authority has been expressly empowered to do so by an authority not so subordinate ; and unless he has been given a reasonable opportunity of showing cause against the action proposed to be taken in this behalf. Then comes Article 178 of the Constitution which grants further protection to civil servants by laying down, inter alia, that rules made for the purpose of regulating the terms and conditions of their service shall not be varied to their disadvantage in so far as those terms and conditions relate to remuneration or age fixed for superannuation, and that in regard to penal orders of a certain kind at least one right of appeal shall be ensured.
7. After spelling out these rights and obligations of persons in the service of Pakistan, the Constitution then proceeds to provide for the establishment of Public Service Commissions for the Centre and for each Province. Clause (1) of Article 196 prescribes the functions of a Provincial Public Service Commission, and clause (2) lays down that "except to the extent that the Governor of a Province, after consulting the Public Service Commission of the Province, may provide otherwise by Order the Governor shall, in relation to the civil services of the Province and civil posts connected with the affairs of the Province, consult the Commission with respect to" the matters enumerated in items (a) to (f) of this clause. Item (e) deals with "disciplinary matters."
8. It will thus appear that unless the Provincial Governor provides otherwise by an Order issued in terms of clause (2) of Article 186 of the Constitution, consultation with the Public Service Commission before imposing a punishment on any person holding a civil post in the Province would be obligatory. However, as already stated, the West Pakistan Public Service Commission (Limitation of Functions) Regulations, 1957, were amended by the Governor of West Pakistan on the 18th of May 1965, and it was provided that it would not be necessary to consult the Public Service Commission in cases "relating to disciplinary matters in regard to, or imposition of any penalty in accordance with the rules on, Tehsildars..
9. It was contended by Mr. A. S. Salam, the learned counsel for the petitioner, that in the notification embodying this amendment there was no indication that there had been prior consultation with the Public Service Commission, and, therefore, the notification was ultra vires of clause (2) of Article 186 of the Constitution ; and that in any case, the notification was ineffective as against the petitioner who was a pre-Constitution employee and thus protected by Article 234 of the Constitution.
10.It is correct that the notification dated the 18th of May 1965, by which disciplinary matters relating to Tehsildars were excluded from the purview of consultation with the Public Service Commission, does not recite that the amendment was being promulgated after prior consultation with the Commission. However, the opening words of the notification are "in pursuance of the provisions contained in clause (2) of Article 186 of the Constitution of the Islamic Republic of Pakistan, the Governor of West Pakistan is pleased to direct that in the West Pakistan Public Service Commission (Limitation and Functions) Regulations, 1957, the following further amendments shall be made ...". It seems to us that these words are a clear indication that the procedure prescribed by Article 186 for the amendment of the relevant Regulations had been followed, as all official acts are presumed to have been regularly done, unless proved to the contrary. In the petition itself there is no assertion that the amendment is bad for want of prior consultation with the Commission, and the point was raised only at the bar. On behalf of the Provincial Government a statement was made by the learned Assistant Advocate-General that there had been prior consultation as required by the Constitution. On this state of the record we must hold that the amendment was properly promulgated.
11.It now remains to be seen whether or not the amendment applies to the case of the petitioner.
Clause (1) of Article 234 of the Constitution enjoins that "subject to this Constitution and the law, any person who, immediately before the commencing day, was in the service of Pakistan shall, as from that day, continue in the service of Pakistan on the same terms and conditions as were applicable to him immediately before that day." It is submitted by the learned counsel for the petitioner that as the latter was in the service of Pakistan immediately before the commencing day, he has a right to continue in service on the same terms and conditions as were applicable to him immediately before that day, and this would include the right to consultation with the Public Service Commission before being subjected to disciplinary action. It appears to the learned counsel that such consultation is in the nature of a substantive service right and could not be taken away retrospectively.
12.There is some conflict of opinion as to whether the constitutional provisions relating to consultation with the Public Service Commission in the matter of recruitment and disciplinary action are mandatory or merely directory in nature. In Dr, M. S. Quraishi v. West Pakistan Government and another a Division Bench of this Court expressed the view that such provisions1 were merely directory, and non-compliance therewith would not render an appointment, otherwise validly made, ineffective and inoperative. In Muhammad Umar v. Malik Hakam Khan and another it was observed that this provision did not apply in the case of temporary employees.
However, in Capt. Muhammad Azhar v. Commissioner of Karachi and another the view taken was that a disciplinary order made without consultation with the Public Service Commission, in a case where such consultation was necessary under the Constitution and the relevant Regulations, was bad in law. Respectfully following this dictum, we consider that if it can be shown that the petitioner's case was one in which consultation with the Public Service Commission was necessary as an essential part of the terms and conditions of his service, then the order of reversion passed against him would have to be declared to be without lawful authority.
13.The phrase " terms and conditions of service " as employed in clause (1) of Article 234 of the Constitution has not been defined in the Constitution itself. However, it has come in for interpretation in several decided cases, namely, Government of West Pakistan v. Fida Muhammad Khan , Government of West Pakistan v. Fateh Ullah Khan , Province of West Pakistan v.
Muhammad Akhtar Qureshi and others , Manzur Ahmad and others v. Ch. Muhammad [shag and others , M. G. Haqan v. The Government of Pakistan and Muhammad Akhtar Hussain and 4 others v. Government of West Pakistan .
14. The trend of authority appears to be to include, within the scope of this phrase, substantive service rights such as are specified in Articles 177 and 178 of the Constitution. Incidents of service like prospects, of promotion to higher ranks, transfers from one jab to another, eligibility to special pay etc., reversion A from an officiating rank, to a substantive post, have not been regarded as being essential ingredients of the protected terms and conditions of service. These judgments have been delivered under section 8 of the Establishment of West Pakistan Act, 1955, as well as under the relevant provisions of the 1956 and 1962- Constitutions.
15.Of direct relevance in the present context are the two last mentioned cases. In the case of M. G.
Hasan, in which the judgment of the Court was delivered by one of us, it was observed that "we would agree with the learned counsel that if the earlier Articles (i. e. 177 and 178) take away protection in respect of certain matters or certain categories of Government servants, then those terms cannot be said to be protected by the operation of Article 234, as this Article is itself subject to the other provisions of the Constitution. However, we have already held that the petitioner is entitled to benefit from the guarantee contained in clause (3) of Article 178 of the Constitution with regard to terms and conditions relating to remuneration or age fixed for superannuation. These observations go to show that in this case Article 234 was not interpreted as protecting any terms and conditions of service available to a pre-Constitution employee, if the same were not also protected, or had been specifically taken away, by the 1962-Constitution.
16.In the case of Muhammad Akhtar Hussain and others the question before the Supreme Court was whether Ordinance XLI of 1963, called the Punjab Government Service (War) Amendment Rules (West Pakistan Repeal) Ordinance, 1963, promulgated by the Provincial Governor, was ultra vires the provisions of Article 234 of the Constitution in so far as it purported to give retrospective effect to the repeal of the Punjab Government Services (War) Amendment Rules, 1943. Their Lordships held that since an Ordinance is definitely a law and clause (1) of Article 234 is subject both to the Constitution and the law, it cannot be said that the terms and conditions, other than those relating to remuneration and age of superannuation, applicable to a public servant at the time of the coming into force of the Constitution cannot be altered to his disadvantage. Whenever the Constitution intends that a particular provision should be subject not only to the Constitution but also to a law enacted by virtue of powers granted by the Constitution it has so provided but where the intention is to make the provision subject to the Constitution it has been so expressed, e. g. in Articles 110, 117, 175 and 177 which are only subject to the Constitution while Articles 178 and 179 are2 3 4 5 6 7 8 9 like Article 234 subject both to the Constitution and the law . It would also appear from the provisions of clause (3) of Article 178 that the guarantee that is being given by the Constitution to public servants is only to this extent that their remuneration and ages fixed for superannuation will not be varied to their disadvantage during the period of their service but there is no guarantee with regard to the other terms and conditions of service. A comparison between these provisions would also make it clear that Article 234 was not intended to guarantee anything more than the continuance of the existing state of affairs during the transitional period or until other provision is made either by the Constitution or some competently made law. It is, therefore, not correct to say that Ordinance XLI of 1963 was bad by reason of being repugnant to the provisions of Article 234 of Constitution".
17. In the light of the principles enunciated in the authorities, just mentioned, we are of the opinion that the procedure provided for consultation with the Public Service Commission before taking disciplinary action cannot be regarded as being in the nature of a substantive service right so as to attract the protection envisaged by clause (I) of Article 234 of the Constitution. The substantive rights in disciplinary matters are spelt out in Article 177 of the Constitution, namely, that certain punishments cannot be imposed by an authority subordinate to the appointing authority, and that too only after a show-cause notice has been served. The procedure by which the competent authority arrives at its final conclusion cannot be equated with substantive rights. It is well settled that there is no vested right even with regard to judicial procedures sanctioned for civil and criminal trials. On the same principle it is difficult to agree that the holder of a civil post has a vested right in the procedure by which disciplinary action against him is to be finalised.
18.Article 234 being itself subject to the Constitution and the law, not only is the protection afforded by it limited to the terms and conditions specified in Articles 177 and 178 of the Constitution, but it would be regulated by the provisions made by a competent authority acting under the Constitution itself. The Governor having been given the authority to issue orders under Article 185 of the Constitution, Article 234 will not stand in the way unless the Order was in conflict with some other provision of the Constitution. Even though consultation with the Public Service Commission in disciplinary matters relating to Tehsildars was compulsory when the 1962- Constitution was promulgated, yet by an appropriate Order made on the 18th of May 1965, the Provincial Governor exempted these matters from the purview of the Provincial Public Service Commission. As a result, it has become possible for the competent authority to finalise disciplinary cases against Tehsildars without consultation with the Public Service Commission. This change in procedure has not in any manner, varied or altered the "terms and conditions of service" of the pre-Constitution Tehsildars.
19.Taking now the second contention that the charge of inefficiency was not warranted on the facts and material placed before the learned Enquiry Officer, suffice it to say that we have perused the Report of the Enquiry Officer and it is clear that it was sufficiently brought out in evidence that the petitioner had not adopted the prescribed procedure in the matter of attesting the mutation of correction, and in finalising the rent suits to which exception was taken. It was conceded at the bar by the learned counsel for the petitioner that while correcting a mutation attested as long ago as 1952, the petitioner, in 1959, had not given a hearing to the affected persons, and it was for this reason that the petitioner did not become aware that the same matter had already been agitated by one of the parties in appeal and revision before the Revenue authorities. A perusal of the relevant paragraphs of the Land Records Manual makes it clear that no mutation of correction could be entered after the entries had been embodied in a Jamabandi, and that no mutation could be attested without affording the concerned party an opportunity of being heard. The petitioner deliberately ignored these provisions and was, therefore, rightly held guilty of at least inefficiency, if not of corruption.
20.The irregular procedure followed by the petitioner in deciding the rent suits was also clearly open to objection. In the present proceedings it is not necessary for us to dilate on this aspect of the matter for we are not concerned with the findings of fact recorded by the Enquiry Officer except for the limited purpose of ascertaining whether the findings are based on no evidence. This certainly not the case in respect of both the charges brought home to the petitioner.
21.For the foregoing reasons, the petition fails and is hereby dismissed. However, in view of the circumstances of the petitioner we leave the parties to bear their own costs. PLD 1966 Lah. 825 PLD 1968 Lah. 1093 PLD 1966 SC 253 PLD 1960 SC 45 PLD 1960 SC 105 PLD 1962 SC 428 P D 1964 SC 17 PLD 1970 Lah, 518 P L P 1970 SC 146