1. M. SALEEM CHAUDHRY (CHAIRMAN).-This is a case in which the Province of Punjab through the Secretary to Government of the Punjab, Social Welfare Department and the Chief Engineer, Punjab, Public Health Engineering Department has assailed the judgment and decree passed in favour of the respondent by the Civil Judge, Lahore on 14th February, 1974 whereby the orders of reversion dated 10th May, 1961 and 1st February, 1972 passed against the present respondent reverting him from the post of officiating SDO to that of substantive rank of Overseer, were held illegal, mak, fide.
2. Vcd and without jurisdiction and the authorities were restrained for ever from implementing and acting upon the said order with respect to the present respondent. The facts of the case which are common between the parties are that the respondent was initially appointed as an Overseer in the B & R Department on temporary basis with effect from 7th May, 1952, In 1951 th Buildings & Roads Department was broken up into different independent units Public Health Engineering Department being one of such units to which the present respondent was allocated for service. On his own option, while serving in the Public Health Engineering Department the respondent was promoted aa an officiating S. D. 0. On a highly tentative basis by an order of the Chief Engineer Public Health Engineering Department dated 24th July, 1964. The said order stipulated that : "The following posting and transfer is hereby ordered in the interest of Public Service :- {{TABLE}} #TBS Posted as Order to #TBE #TBS Offg : S.D.O. In P.H. Engg: Circle, LYP till further orders. #TBE #TBS Name and rank Present charge from Mr. Muhammad Temporary Sharif Ashraf Overseer in Temporary Over- Public seer. Health En- gineering Circle, Lyallpur. #TBE Mr. Muha nmad Sharif should be relieved of his present duties immediately by local arrangement and posted as Offg : S. D. O. In Public Health Engg. Circle, Lyallpur. His actual posting order should be issued by the S. E. P. H. E. Circle, Lyallpur under intimation to this office. {{TABLE}}
2. The actual date of his relief should please be reported to this office promptly.
3. It is hereby mentioned specially that Mr. Sharif Ashraf is promoted as Offg : S. D. 0. Purely provisionally and as a stopgap arrangement and subject to the approval of West Pakistan Public Service Commission. He will be on trial for a period of six months and his continuance beyond the trial period will be subject to his earning satisfactory report and also subject to the approval of West Pakistan Public Service Commission. He is liable to reversion on the availability of qualified engineers or at any time without any notice and without assigning any reason therfore, his promotion will not confer on him any right for seniority over his seniors who have not so far been promoted as Officiating S. D. Os, After six months of his promotion, if he continues as such, a special report on his work and conduct should be written and sent to this office. He should not however, be relieved for promotion, if any recovery is outstanding against him or any irregularity of serious nature/ over-payment has been noticed by the Director, Audit and Accounts 'Works' West Pakistan, Lahore as incorporated in the Draft Paras."
3. The appellant was subsequently reverted to his substantive rank of an overseer by an order dated 10th May, 1967 passed by the Chief Engineer, West Pakistan Public Health Engineering Department, which reads as under :- "The following postings and transfers are hereby ordered in the interest of Public Service, with immediate effect. Mr. Ahmad Bux Offg : S D 0 Offg : S D 0 After having been re- Ayaz, Offg : Eastern P H E Sub- lieved by B&R Depart- SDO. Region of Divn. Ment Mr. Ahmad Bux B&R Deptt : Bahawalnagar Ayaz, should take till further over charge of P H E orders. Sub-Division Bahwal- nagar from Mr. Muhammad Sharif Ashraf Offg : S. D. 0. Who is hereby reverted to his original rank of Temporary overseer."
4. Being aggrieved by the forenientioned order the appellant filed a suit in the Court of Administrative Civil Judge Bahawalnagar praying for interim injunction against the aforesaid order of reversion dated 10th May, 1967. The suit was later on withdrawn by the respondent. The appellant was again promoted as Officiating S. D. 0. By an order of the Chief Engineer, Public Health Engineering Department dated 12th January, 1971 again on a highly tentative basis. As before the said order described the promotion as ad hoc and again repeated all the conditions attached with the earlier order of 10th May, 1967, which have been reproduced above. It appears that the respondent was placed under suspension on a subsequent date and in that state he was once again demoted to this substantive rank of an overseer by an order dated 1st February, 1972 passed by the Chief Engineer, Public Health Engineering Department in the following terms #TBS -r) #TBE "Mr. Muhammad Shard Ashraf (under suspension) who was promoted as officiating Sub-Divisional Officer ad hoc, purely provisionally as a stop gap arrangement on trial for a period of six months vide Office Order No, 4-ES/57/77-ES(2), dated 12th January, 1971 is hereby reverted to his original post of Overseer with immediate effect. On reversion he is posted to Public Health Engineering Circle, Multan."
5. Aggrieved by the said order the appellant lodged a civil suit in the Court of Senior Civil Judge, Lahore on 6th March, 1972, in which he assailed not only the last reversion order of 1st February, 1972 but the earlier order of 10th May, 1967 as well. After hearing the parties the learned Senior Civil Judge, Bahawalnagar in his judgment dated 14th February, 1972 passed a decree in favour of the present respondent holding the orders of 10th May, 1967 and 1st January, 1972 impugned before him as "Illegal, mala fide, void and without jurisdiction" and the defendants before him were restrained from never implementing and acting upon the impugned order in so far as they affected the plaintiff. Being dissatisfied with the said order of Civil Judge, Lahore the Government went in appeal in the Court of Additional District Judge, Lahore, where the suit eventually abated due to promulgation of the Punjab Service Tribunals Act, 1974 and the formation of the Tribunal under the said Act. This has resulted in the present appeal before us.
6. The learned Senior Judge in the order dated 14th February, 1974 has noted the following ,grounds on behalf of the plaintiff before him :-
(I) The plaintiff was senior S. D. 0. To many le-elating S. D. Os. When he was illegally demoted by the defendant No, 2 on 10th May, 1967. This clearly depicts the mala fides of defendant No, 2.
(ii) The plaintiff has an unblemished record and there is no justification for defendant No, 2 to demote him in 1967 or in February, 1972.
(iii) The demotion of the plaintiff is against the law and the rules framed by the department.
(iv) The effect of the illegal reversion of the plaintiff is that many of his juniors continue to hold the rank of S. D. Os. Till today.
7. Learned Senior Civil Judge has thereafter proceeded to frame the issues which are for in number and issue No, 3 is the crucial one which is "whether the impugned orders dated 10th May, 1967 and 1st February, 1972 are ultra vires, illegal, mala .Fide, void and inoperative for the reasons cited in the plaint". Since the issues were considered as interconnected the learned Senior Civil Judge has dealt with them all together. The argument of the plaintiff before the Senior Civil Judge turns round his assertion that after completing six months trial in the officiating position and earning satisfactory report the plaintiff continued as a S. D. O. For an indefinite period and in the light of the rule laid down by their Lordships in PLD 1965 SC 208 he was at least entitled to the required formalities of law before order of his demotion could be passed. It is alternately argued that after the completion of his initial trial period of six months it was incumbent upon the authorities to have referred the case of the plaintiff to the Public Service Commission for approval for regular promotion and failure to discharge this obligation was tantamount to floating the teams and conditions of the promotion orders of 24th July, 1964 and 12th January, 1971 and in that context the demotion orders are tainted with mala fide. The plaintiff before the Senior Civil Judge had heavily relied upon the rule laid down in PLD 1970 Quetta 115 which has been quoted in extension in the impugned order. In the cited case the appellant who was originally appointed as a Lower Division Clerk in the War Department of Government of India after passing through the various stages of promotion was in 1962-63 working as Assistant lncharge in the Directorate General of Defence Purchase, Ministry of Defence, Karachi. The department of Geological, Survey of Pakistan Quetta called for recruits from various Ministers/Divisions/Departments for filling some posts of Temporary Superintendents through a circular which also came to the office of appellant and he gave his biodata and offered particulars in the prescribed pro forma. His application was duly forwarded by the Ministry of Defence to the relevant authorities with the result that the post of temporary Superintendent was offered to the appellant through the Ministry of Defence which he accepted, and joined the new assignment with effect from 16th September, 1963 the relevant promotion order was : "Mr. J. A. Akhtar Yousafzai, an Assistant Incharge of the Directorate General Defence Purchase Ministry of Defence, Karachi, has been appointed to officiate as Superintendent in the Geological Survey of Pakistan, Quetta w. e. f. The 16th September, 1963 and his pay has provisionally been fixed @ Rs, 440 per month in the scale of No, 335-15-350--20-480-LB---20-660 until further orders."
8. Officer which was gazetted class II post with effect from 15th May, 1963, in the same department, his promotion order runs as under "Mr. Jafar Ali Akhtar Yousafzai, Office Superintendent in the Geological Survey of Pakistan is appointed to officiate as Assistant Accounts Officer in the same Department with effect from the forenoon of the 15th May, 1965 until further orders."
9. The impugned order of reversion of the appellant to Class III post of an Assistant (which he held in the Air Headquarters of the Ministry of Defence before his transfer to the Department of Geological Survey of Pakistan) was passed on 3rd July, 1963. The reason for the reversion was stated to be the rectification of an administrative irregularity. It has been further clarified in para. 8 of the judgment that while inviting applications for the forementioned post of Superintendent. "Five years service as Assistant in the Central Secretariat or Attached Department" was laid down as one of the qualifications. At the relevant time the appellant had admittedly served as Assistant for more than five years in the Department of Inter-Services Intelligence Directorate, Ministry of Defence and also for more than five years as Assistant Incharge in the Department of Directorate General of Defence.
10. It later on dawned upon the authorities that the forementioned two Departments in which the appellant had served before being appointed as Superintendent in the Geological Survey of Pakistan, were not attached Departments and as such the appellant did not qualify for the post of Superintendent and his appointment was irregular al) initio. It was this administrative irregularity which was sought to be rectified by the impugned order. After going through the relevant records and hearing the arguments their Lordships felt satisfied that the Intelligence Directorate of Ministry of Defence and Directorate General of Defence Purchase of the same Ministry were attached departments at all relevant times. It was after the learned counsel for respondent was confronted with the forementioned finding that he pressed into service the arguments based upon the use of expressions as officiating "or" until further orders in the two relevant promotion orders, to provide a post-facto justification for the reversion of the appellant which had been ordered on quite different premises in the beginning. It was in this context that their Lordships observed that "But" in or view, the question involved in the contention raised by the learned counsel for the respondents has essentially to be resolved by reference to the expression used in the two appointment orders, the background it. Which they were passed and the subsequent conduct of various Departments concerned, and further the "In such like cases when continuous officiating in not specifically authorised by any law and the Government/ competent authority continues to treat the incumbent of a post as officiating, in or view it is only to retain extra disciplinary powers or for other reasons including those of inefficiency and negligence, e. g. Failure on the part of the relevant authorities to make the rules in time, that the prefix "officiating" is continued to be used with the appointment and in some eases for years together. In proper cases, therefore, Courts are competent to decide whether for practical purposes and for legal consequences 1:such appointments have permanent character, and, when it is so found, to give legal effect to it". In or view therefore it is not merely the use of such expressions as "officiating" or 'until further orders', which will provide basis for "officiating" and parallel in any two cases but it is the similarity or otherwise in the circumstances of the case and the background in which the orders are passed which would determine the extent of the applicability of the conclusions of one case to another. From the facts of the instant case before us and those of the case cited as PLD 1970 Quetta 115, it is evident that the two cases are clearly distinguishable. In the Quetta cave the reversion was never originally intended but was the result of the mistaken realization after five years of the event about the irregularity of the original transfer order dated 19th September, 1963. The authorities having failed to substantiate the validity of the promotion on which the reversion order had been originally passed, pressed in to service the arguments based upon the tentative nature of promotion arising and of the use of such expressions as 'officiating' and' until further oreyers' and then sought to provide a post-facto justification for the reversibn orders. The conditions attached to the two promotion orders of the present respondent dated 24th July, 1964 and 12th January, 1971 have already been reproduced above. The department has been at pains to make the promotion as tentative as possible. The promotion has been described as provisional stopgap arrangement, subject to the approval of West Pakistan Public Service Commission, continuation beyond a trial period of six months being subject to earning satisfactory report with a liability to reversion on the availability of qualified engineers or at any time without any notice or without assigning any reasons therefor. In the instant case the reversion is neither sudden nor unexpected but has been the result of the availability of graduate engineers for which the appellant was in no uncertain terms put on notice in the promotion orders dated 24th July, 1964 and 12th January, 1971. The promotion orders passed in the Quetta case which have been reproduced earlier the promotion order dated 24th July, 1964 and 12th January, 1971 in the instant case are wide apart in their intent and scope. We thus conclude that the learned Senior Civil Judge has erroneously applied the conclusions of the case cited as PLD 1970 Quetta 115 to the facts of the instant case before us.
11. We have heard the parties at length. From the facts of the case narrated above we are of the view that the promotion of the respondent has on a highly tentative and precarious (sic) basis. It has been held in Pakistan and another v. Hakim Hussain that the Government can at any time terminate an officiating appointment and revert the person holding such appointment to his original position. The appointment in the higher position in the instant case is even more precarious and on a lower pedestal than on officiating position and the respondent cannot claim to be better placed than an officiating hand. We therefore find no force in the arguments of the respondent that his reversion operated as reduction in rank warranting the usual disciplinary process entailing the issuance of the show-cause notice etc. The respondent has also argued that in terms of his promotion order he was placed on probation for six months and having completed such period it was incumbent on the authorities either to have confirmed him or to have referred his case to the Public Service Commission for approval of his regular appointment. On a perusal of the promotion order we are unable to derive any such concessions as is pressed by the respondent. Approval of the Public Service Commission, if at all obtained would have been for continuation on the same precarious basis which the promotion order had so clearly spelled out.
12. For the same reasons six months trial period, as envisaged in the promotion order can also not be equated to a probationary period which leads to confirmation in a post. Since the promotionl of the respondent was expressly for the purpose of manning the post till qualified hands were available he cannot lay any claim to any quota fixed for induction in the regular class II Service, because such induction is based upon considerations entirely different from a fortuitous appointment to the higher post on a highly tentative basis for a limited period and for a definite purpose. The above conclusions also find support from case cited as PLD 1968 Kar. 693, which case in most of its essential features is not distinguishable from the instant case before us.
13. It has also been argued on behalf of the respondent that during the period of his reversion some of his juniors in the overseers list have been promoted on regular basis and the appellant has been ignored. We are afraid or jurisdiction to enter upon this question is barred by proviso (6) to section 4 of the Punjab Service Tribunal Act, 1974 as this is essentially a question of determination of the fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher grade.
14. In the result we do not find force in any of the contentions of the respondent. The appeal is, therefore, accepted and the order and decree passed by the learned Civil Judge Lahore dated 14th July, 1974 is set aside. There are no orders as to costs. 1