This civil revision is directed against the judgment and decree of an Additional District Judge whereby he accepted an appeal filed by the respondent, Muhammad Saeed, against the judgment and decree passed by a Civil Judge, and decreed a suit brought by the respondent which had been dismissed by the trial Court.
2. The two petitioners, namely, Province of the Punjab and the Director of Prisons, Central Range, Bahawalpur, were defendants in the aforesaid suit. The dispute involved therein was in respect of the appoint--ment of the respondent as Assistant Superintendent of Jail. It was in response to an advertisement issued by the second petitioner on 14th April 1967 that the respondent had applied for appointment as Assistant Superintendent of Jail. On 16th June 1967, the respondent appeared before a Selection Board for the purpose of his selection for the said job and on 19th September 1967 he was informed that he had been earmarked for appointment as Assistant Superintendent of Jail and will be appointed as such on his fulfilling certain conditions which are spelt out in the order, copy Exh. P. 4, issued to him by petitioner No. 2. Subsequently, however, the aforementioned offer of appointment was withdrawn, vide order dated the 19th October 1967, copy Exh. D.
2. Thereupon, he filed the suit, giving rise to the present revision, seeking a declaration to the effect that he was an Assistant Superintendent of Jail under the petitioners since 19th September 1967 when he was so appointed and was entitled to all the fringe benefits of that post and that the action of the petitioners was mala fide when he was not allowed to join as Assistant Superintendent of Jail. By way of consequential relief, he prayed for a permanent injunction directing the petitioners to implement the order of 19th September 1967 issued by the second petitioner.
3. The suit was resisted by the petitioners on various grounds which gave rise to the following issues :- "(1) Whether the suit is maintainable in the present form ? O. P. P.
(2) Whether the suit is within time ? O. P. D.
(3) Whether this Court has no jurisdiction to try the suit ? O. P. D.
(4) Whether the plaintiff has locus stand! to bring this suit ? O. P. D.
(5) Whether the plaintiff was duly selected for the post concerned ? D. P. P.
(6) Whether the plaintiff is entitled to the relief prayed for ? O. P. P.
(7) Relief."
4. The learned Civil Judge decided Issue No. 3 in favour of the respon--dent and all other issues against him. As a result, the suit was dismissed leaving the parties to bear their own costs.
5. When the appeal was taken by the respondent to the learned Additional District Judge, he reversed the findings recorded by the learned trial Court against the respondent and, while setting aside the judgment and decree of the learned trial Court,- passed a decree in favour of the respondent and against the petitioners with a direction that the petitioners shall proceed to finalize the proceedings taken in pursuance of the advertisement of 14th April 1967.
6. Being dissatisfied with the result of the appeal, the petitioners have come up in revision to this Court.
7. While assailing the judgment and decree of the learned Additional District Judge it was contended by the learned counsel for the petitioners that the suit brought by the respondent was time barred. He maintained that the order relating to the withdrawal of the offer of appointment was made on 19th October 1967 but the suit was instituted by him on 20th May 1974. According to the learned counsel, the period of limitation for the declaratory suit brought by the respondent was six years as prescribed by Article 120 of the First Schedule to the Limitation Act, 1908, but since the suit was filed by the respondent after the aforesaid period had run out, the suit was liable to be dismissed on the ground of limitation.
8. On the other hand, learned counsel for the respondent submitted that after the making of the impugned order on 19th October 1967, the respondent bad made representations against that order whereupon he was informed that the matter was under consideration. It was, therefore, maintained by the learned counsel that the period of limitations would not run from the aforesaid date.
9. In response to the plea raised by the learned counsel for the respondent, it was urged by the learned counsel for the petitioners that there was nothing on the record to show that the respondent had been making representations in regard to the matter in dispute and that he was told that the same was under consideration. It was also argued by him that 'since the representations referred to by the respondent were not allowed by any statute or rule the representations, if made, would not have the effect of extending the period of limitation. In this connection he relied on F. A. Khan v. The Government of Pakistan (PLD 1964 SC 520
10. I have gone through the record and find that the respondent did not prove any representation having been filed by him against the order, dated 19th October 1967, made by the petitioners. As indicated above, it was by the said order that the petitioners; had withdrawn the offer to absorb the respondent against one of the five vacancies in the post of the Assistant Superintendent of Jail. .
The said offer was made to him on 19th September 1967 (vide order copy Exh. P. 4) when he was earmarked for absorption against one of the said vacancies.
Learned counsel for the respondent could not refer me to any provision of law conferring a right of representation or appeal on the respondent qua the impugned order of 19th October 1967. Even if he had any such right, he did not as stated earlier, place on record any copy of the appeal or representation showing that he had exercised the said right. I, therefore, agree with the learned counsel for the petitioners that the period of limitation would not run from 19th October 1967 when the order regarding the selection of respondent for the post of Assistant Superintendent of Jail was withdrawn: Admittedly, the suit was not filed within six years of the making of the above order. It was, therefore, time barred
11. Another plea raised by the learned counsel for the petitioners was that the order, dated the 19th September 1967, regarding the selection of the respondent for the post of Assistant Superintendent of Jail did not confer a right of appointment on him and, therefore, he could not seek its enforcement through a Court of law. He relied on Inspector-General of Police, West Pakistan rout another v. Abdur Rashid Khan (PLD 1972 Pesh. 13), M. A. Khan v. Government of Pakistan, Ministry of Defence, Karachi and 4 others (PLD 1956 Pesh. 121and Union of India v. D. S. Bajaj (AIR 1955 Pb.
122to support his contention.
12. Learned counsel for the respondent did not dispute the proposition that the selection did not confer a right of appointment. It was, however, maintained by him that since after his selection the respondent was also asked to undergo a training course, it would follow that he was actually appointed as Assistant Superintendent of Jail and could, therefore, seek the vindication of his rights qua the said post my invoking the jurisdiction of the civil Court. In this connection, he invited my attention to Shaukat A.I v. Inspector-General of Prisons, Punjab etc. (1975 Law Notes Lah. 89).It was also urged by the learned counsel for the respondent that having once selected the respondent for appointment as Assistant Superintendent of Jail the petitioners could not decline to appoint him as such. For this proposition he relied on Dr. Mahboob Rabbani v. Government of West Pakistan (PLD 1963 Lah. 53
13. It is true that by the same letter by which he was earmarked for appointment as Assistant Superintendent of Jail the respondent was inter alla asked to receive training jail work but, admittedly, the offer of appointment was withdrawn before he could join the training course. The letter (copy Exh. P. 4) reads thus : DIRECTORATE OF PRISONS, CENTRAL RANGE, BAHAWALPUR Offer "The five temporary posts of Assistant Superintendents Jails are likely to become vacant in near future. The following candidates are earmarked to be absorbed in the future vacancies provided they agree to receive training for six months at their own expenses :--
(1) Mr. Hamid Mahmood son of Abdullah Khan.
(2) Mr. Muhammad Saeed son of Ch. Abdul Ghani.
(3) Mr. Muhammad Afzal son of Ch. Ahmad Khan.
(4) Mr. Nasir Mahmood son of Ch. Muhammad Shafi.
(5) Mr. Shaukat Hayat son of Muhammad Hayat.
(A) They shall be required to produce a medical certificate within fifteen days of the receipt of this offer regarding their fitness for Government Service from the Medical Superintendent, District Headquarters Hospital of the District to which they belong. The fitness will be based on the following :-
(a) Physical and mental fitness.
(b) Vision 6/6.
(c) Height 5----7---
(d) Chest 33"-35---
(e) Age between 21 & 25 years.
(B) (f) -If they are declared medically fit for Government service they shall receive six months training at their own expenses as under :-
(a) 3 months at Central Jails.
(b) 3 months at West Pakistan. Prisons Staff Training Institute, Ferozepur Road, Lahore.
(il) During the 3 months' period of training they will receive training of the practical work and will actually perform the duties to learn the job as under :- Warder duties 15 days.
Chief Warder duties= I5 days.
Factory work= 1 month.
Accounts and routine work= 15 days.
Admission, Releases of remission to prisoners. 15 days.
(iii) For the period of 3 months of training at Jails they shall also learn drill, parade and musketry for one hour daily.
(iv) They will not be paid any stipend during the period or training. However, free bachelor lodging at the Jail premises in Warder lines will be allowed.
(C) (i) After successfully completion of six months training they will be absorbed as Assistant Superintendents Jail in future vacancies as and when will occur in any Jail in this Range. They will also be liable to be transferred to any Jail in the West Pakistan.
(ii) When appointed their seniority in their above-mentioned group will be determined in accordance with their merit during practical training at the Jails and on the basis of marks obtained in the examination which will be conducted after successfully completion of the training course at the West Pakistan Prisons Staff Training Institute, Lahore.
(iii) The candidates who will fail in both the training, Departmental Examination and whose work and conduct is not found satisfactory during the period of training will not be absorbed.
(iv) When absorbed and appointed as Assistant Superintendent, Jail they will be allowed initial pay of Rs. 175. p.m. In the scale of 175-15-325/ 15-400 (subject to revision) from the dates they resumed duty. In addition they will be provided a rent free quarter at the Jail premises or Rs. 30 p.m. As house rent in lieu thereof, if no quarter is provided.
(v) They will be governed by Rules/Instructions in force at the time of their appointment or issued thereafter from time to time.
(vi) They will have no right of absorption if the vacancies do not occur or position is changed due to reversion of senior officers as a result of direct recruitment of Superintendents and Deputy Superinten--dent Jail.
(vii) No T. A./D. A. Will be allowed to them on joining the course of training and on first appointment.
If they accept the offer on the above conditions they should submit the following documents to this Directorate by 15th October 1967, so that orders of their training may be issued :-
(i) Medical certificate.
(ii) The names of their relatives if any who served or are serving in Jail Department with exact relations.
(iii) The property they own.
(iv) The enclosed declaration form duly filled in and signed.
(Sd.) Major M. Ibrahim Tarin.
T. P. K.
Director of Prisons, Central Range, Bahawalpur."
The submission of the medical certificate, the undergoing of the training programme etc., were certain requirements which were to be satisfied before the respondent could be appointed as an Assistant Superintendent of Jail. Even on satisfying the requirements catalogued in the letter, he could not claim appointment as a matter of right . This is clear from paragraph (c) of the letter, Exh.
P.
4. In any case the appointment of the respondent as Assistant Superintendent of Jail had not been ordered by the aforesaid letter. His appointment was yet to be ordered when it was decided to withdraw the offer of appointment. This the petitioners could do at any time before his actual appointment. The cases of Inspector-General of Police, West Pakistan and another, M. A. Khan and Union of India are the authorities in point. In the first-mentioned case under report, the name of a Sub-Inspector of Police was shown in the promotion list but his name was removed from the list. It was held that the removal of his name from the list could not be challenged before a Court of law.
The selection of the respondent was also, in substance, the inclusion of his name in the list of candidates approved for appointment as Assistant Superintendents of Jail against future vacancies and by recalling his selection the petitioner had, in effect, removed his name from the said list. In the case of M. A. Khan, it was held that where an appointment is to be made by an authority by selection it will be made by that authority and if the Court appointed any person to a post by writ, the Court will be usurping the function of the selecting authority. The relevant observations made in the case of Union of India of reads thus :- "The question for decision in the present case is rather an important one. Taking the facts to be that the plaintiff had a diploma from the Crystal Palace School of Practical Engineering, London, which is one of the qualifications entitling him for promotion to Class 11 and if the plaintiff is qualified to get promotion as a matter of right, can the Courts interfere in the method of administration of the Government . . . . . It may be that the qualifications which the plaintiff possesses are equivalent to those which must be possessed by a qualified Subordinate and that has been admitted by the defendant, but the question is whether this Court can issue a mandatory injunction enjoining on the defendant to place the plaintiff in the list of temporary qualified Subordinates as contemplated by Exh. 13 whereby the Chief Engineer of the Central P. W. D. Was authorised to promote certain people, and by giving that injunction this Court will virtually be taking upon itself the control over Government in the most detailed work and managing its service." Elaborate rules have been framed and careful provision has been made for redress by administrative processes of wrongs such as the plaintiff is complaining of and it would indeed be causing confusion if the Courts undertake to do which is the function of the executive."
14. As regards the case of Shaukat All, relied upon by the learned counsel for the respondent, it was not a civil suit but a writ petition. The facts of the said case are also different from those of the case in hand. What happened in the cited case was that certain persons were called for selection for certain posts but before the result of the selection was announced; another selection was undertaken. It was, therefore, directed by this Court that the Departmental authorities should finalise the result of the earlier selection before holding a fresh selection. In the present case, the result of any selection was not pending announcement. The selection of the respondent to which the present case relates had been concluded and he alongwith four others had been selected. It is a different matter that subsequently the order of his selection was withdrawn. His case, therefore, eminently attracts the law laid down in the cases of Inspector-General of Police, West Pakistan and another, M. A. Khan and Union of India and not the one propounded in the case of Shaukat A.I.
15. As for the case of Dr. Mahboob Rabbani it is distinguishable on facts. In that case the order allowing leave to a civil servant had come into operation and therefore, it was held that such an order could not be rescinded. In the present case, the order had not come into effect as the respondent was yet to be appointed to the post in question when the offer of appointment was withdrawn. It was held in Shahbaa v. The Crown (PLD 1956 FC 46that locus poenitentiae in law refers to the power of receding till a decisive step is taken, but if that step is still to be taken, there is no reason to restrict the power to modify or cancel. The decisive step in the present case would have been the appointment of the respondent to the post of the Assistant Super--intendent of Jail which was yet to be ordered when the offer of appointment was withdrawn. It was, therefore, open to the petitioners to withdraw the offer at the stage at which it was done. The case of Dr. Mahboob Rabbani is, therefore, of no avail to the respondent.
16. The upshot of the above discussion is that the selection of the respondent for appointment as an Assistant Superintendent of Jail and the other developments in relation thereto did not amount to the appointment of the respondent as Assistant Superintendent of Jail nor did it confer a right of appointment on him. The order of his selection, which was referred to as the offer of appointment in the impugned order, could be withdrawn at any time before the actual appointment, and this was, in fact, done by the petitioners. No law or authority was cited by the learned counsel for the respondent to show that such a withdrawal could not be ordered by the petitioners. I, therefore, hold that the order relating to the withdrawal of the officer of appointment could not be questioned by him before a civil Court.
16. The last objection raised by the learned counsel for the petitioners against the judgment and decree of the learned Additional District Judge was that although he had refused the main relief claimed by the respondent yet he had granted the consequential relief asked for by him. As indicated in the beginning, the respondent had prayed for a declaration to the effect that the order of the recalling of his selection was void and illegal, and it was by way of consequential relief that he had asked for mandatory injunction requiring the petitioners to qrder his appointment as Assistant Superintendent of Jail. The learned Additional District Judge did not grant him the main relief but allowed the consequential relief to him. According to the learned counsel since the principal relief had been refused to the respondent, the consequential relief could also not be allowed. For this proposition, he relied on AI-Haj Abdur Rehman Bhuiya and others v. The Commissioners of the Narayanganj Municipality and others (PLD 1951 Dacca. 5
17. It was not disputed by the learned counsel for the respondent that the main relief asked for by the respondent had not been granted by the learned Additional District Judge. The only order passed by him was that the petitioners should proceed to finalise the proceedings taken in view of the advertisement dated 14th July 1967. Thus, he had, in some form, allowed the consequential relief prayed for by the respondent. He had, in fact, directed the petitioners to do what this Court had required the Departmental authority to do in the case of Shaukat All. While so doing he, however, overlooked the distinction between the nature of the proceedings before him and the facts involved therein vis-a-vis those of Shaukat A.I's case. In any case, he was not justified in allowing consequential relief while refusing the main relief prayed for by the respondent . In taking this view, I am fortified by the following observations made in the case of Al-Ha/ Abdur Rahman Bhuiya and others relied upon by the learned counsel for the petitioners :- "We are in respectful agreement with the views expressed in the above--mentioned cases. It seems to us that, framed as the first three reliefs are in the present case the plaintiffs are not entitled to any of them. The declarations that they seek are declarations as to the legal character of persons other than themselves, and, so far as the relief for permanent injunction is concerned, this has been framed as a consequential relief flowing from the above declarations. As such, if they are not entitled to the said declarations, they are also not entitled to the permanent injunctions that they seek. Apart from this, even if this is treated as a suit for a mere permanent injunction, any Court, in our opinion, would be-reluctant to grant an injunction in such a wide form ; namely, that the Municipality be restrained from realising rates and taxes from all the rate-payers in general or that its Commissioners should generally be restrained from sitting, acting and functioning as Chairman, Vice-Chairman and Commissioners of the Municipality, apart from anything contained in the Bengal Municipal Act itself."
18: In view of what has gone above, I am unable to uphold the judgment and decree of the learned Additional District Judge and, therefore, accept this revision petition, with costs, set aside the judgment and decree of the learned Additional District Judge and restore those of the learned trial Court.