NOORUL ARFIN, J.--This petition under Article 98 of the Constitution questions the reversion of the petitioner from the post of Communication Officer in the Civil Defence Organization to the post of Staff Officer in the same Organization. The relevant facts may be summarised as under :-
2. On 14th February 1951, the petitioner was appointed, after selection by the Central Public Service Commission, as Staff Officer, Warden Service, in the Civil Defence Organization, Karachi, this post being a Class II Gazetted Post. By Notification dated 22nd June 1956, the petitioner was confirmed in this post with effect from the date of his appointment. On 11th April 1953, the petitioner was promoted as Training Officer in a temporary capacity with effect from 1st March 1953. He was reverted to his substantive post of Staff Officer on 17th April 1956, but on 28th May 1956 he was promoted as Administrative Officer in the Civil Defence Organization which promotion took effect from 1st March 1956. On 24th July 1958, the Chief Commissioner's Secretariat issued the following notification :- "No, 3/27/54-C. D.--In partial modification of this Secretariat Notification of even number dated 28th May 1956 the Chief Commissioner, Karachi has been pleased to create a supernumarary post of Training Officer in the Civil Defence Organization, Karachi, in the scale of Rs, 350-20-450-EB-25- 600 for the period from 4th May 1953, to 7th June 1956, and to appoint Mr. I. A. Razvi to officiate in that post. From 8th June 1956 onwards Mr. Razvi will officiate as Administrative Officer in the same scale, in the same organization?as a temporary measure pending further orders.
2. This Secretariat Notification No, 3/27/54-C. D. dated 22nd November 1957 is cancelled."
It would appear from this Notification that supernumarary post of Training Officer was created to regularise the officiating appointment of the petitioner in that post for the period from 4th May 1953 to 7th June 1956. It would further appear from this notification that the appointment of the petitioner to the post of the Administrative Officer was in officiating capacity. Some time in 1959 the post of Communication Officer in the Civil Defence Organization fell vacant temporarily. The Controller of Civil Defence Organization accordingly wrote a letter to the Chief Commissioner, Karachi, on 26th June 1959, recommending the petitioner's appointment as officiating Communication Officer. Consequently, by Notification dated the 15th July 1959, the petitioner was so appointed with effect from 27th June 1959. However, the expressions "officiating" or "temporary" were not used in this Notification. Since the absence of these expressions has been canvassed at length by the petitioner's learned Advocate, Mr. Sami Ahmad, it will b a useful to reproduce the whole Notification hereunder : "No, F. 3(24)/55-C. D.--Mr. S. A. W. Razvi, Communica-tion Officer, Civil Defence, Karachi, relinquished the charge of the post on 27-6-59 (Forenoon) and his services placed at the disposal of Ministry of the Interior.
2. Mr. I. A. Razvi, Administrative Officer, Civil Defence Karachi has been appointed as Communication Officer in the same Department with effect from 27-6-59 (Forenoon) vice Mr. S. A.
W. Razvi."
From this Notification, it would appear that the petitioner's appointment to the post of Communication Officer was made because the then incumbent of the post, namely, Mr. S. A. W.
Razvi had been deputed to the Central Government. On 18th September 1959, the Administrator of Karachi issued another notification, partially modifying the notification reproduced above. This second Notification had the effect of promoting the petitioner to the post of Communication Officer "vice Mr. S. A. W. Razvi transferred to Ministry of Interior". The relevant portion of the Notification reads as follows : "In partial modification of this Secretariat letter No, F. 3(24)/55-C. D. dated the 30th June 1959, the Administrator Karachi, has been pleased to order the promotions of the following officers in the Civil Defence Organization with effect from the dates they take over.
"(1) Mr. I. A. Razvi, Administrative Officer, Civil Defence Organization to work as Communication Officer vice Mr. S. A. W. Razvi transferred to Ministry of Interior.
(2).......................................................
(3).......................................................
Mr. S. A. W. Razvi returned after completing his period of deputation with the Central Government and consequently the petitioner was reverted to the post of the Administrative Officer on 21st December 19o0. On 7/9th January 1961, Mr. S. A. W. Razvi went on four months' leave, presumably as preparatory to his retirement. Before this, however, the Controller, Civil Defence Organization, had suggested to the Karachi Administration for appointment of the petitioner as Communication Officer in the leave vacancy of Mr. S. A. W. Razvi, though the notification of the petitioner's appointment issued on 29th January 1961 did not contain any mention of this fact, However, the petitioner's learned Advocate, Mr. Sami Ahmad, agreed that during the period Mr. S. A. W. Razvi was on leave, the petitioner's appointment as Communication Officer could not be treated as substantive appointment but only as a temporary of pointment against a leave vacancy. Mr. S. A.
W. Razvi then retired from service. The Central Public Service Commission by letter dated 27th February 1961 to the Karachi Administration took the stand that one of the three posts in the Civil Defence Organization, that is, the post of Communication Officer, Administrative Officer and Public Relations Officer, should be filled by promotion and the remaining two posts by direct appointment through the Commission. In the same letter, the Commission advised the Karachi Administration that the post of the Aministrative Officer should be filled by promotion of a Superintendent in the Civil Defence Organization and the posts of Communication Officer and Public Relations Officer by direct appointment and accordingly it was suggested that applications should he invited by advertisement to fill these two posts. It appears that no action was taken by the Karachi Administration on this letter of the Commission. In the meantime, Karachi became part of West Pakistan and the matter was then taken up by the West Pakistan Public Service Commission who, by letter dated 2nd August 1966, advised the Provincial Government that the appointment of the petitioner as Communication Officer was irregular. Upon this, the Director, Civil Defence, West Pakistan, instructed the Additional Controller, Civil Defence Organization, Karachi, to revert the petitioner to his original post of Staff Officer, which action was taken on 17th January 1967.
Thereafter, the petitioner came to this Court under Article 98 of 1962-Constitution to challenge his reversion from the post of the Communication Officer to that of his original post of Staff Officer.
3. At the outset, Mr. Sami Ahmad, the petitioner's learned Advocate, put forth several arguments in support of the petition. One of his contentions was that the petitioner could have been reverted to the post of Training Officer but not to that of the Staff Officer. When, however, it was pointed out to him that the material on record showed that the petitioner's appointment as Training Officer was only in an officiating or temporary capacity, the learned Advocate took the stand that the petitioner's reversion should have been to the post of the Administrative Officer. But his attention was drawn to the notification date 24th July 1958, which expressly stated that the petitioner's appointment as Administrative Officer was only in officiating capacity. Thereupon, Mr. Sami Ahmad took the stand that the petitioner's case was covered by the Supreme Court decisions in Abdul Majid Sheikh v. Mushaffe Ahmad and Miss Naseem Jahan Nairn v. General Manager, P. W. Rly. and others . But we express our inability to accept this proposition as, in our view, these two decisions dealt with the effect of Article 179 of 1962-Constitution with regard to temporary appointments. We pointed out to the learned Advocate that Article 179 contemplated cases of direct appointments in temporary capacity, in which case the appointee was entitled, as far as removal or dismissal from service was concerned, to the Constitutional safeguards contained in Article 177 of the Constitution, but that the two decisions of the Supreme Court, upon which Mr. Sami Ahmad had taken stand, did not apply to cases where the incumbent of a substantive post, or even of a temporary post, is promoted to a higher post in an officiating capacity but is later reverted or sent back to his original post. Now, on the question of reversion of a Government servant from a post held by him in an officiating or temporary capacity, the Supreme Court has from time to time made pronouncements that such reversion cannot be treated as reduction in rank. All these cases were pointed out to Mr. Sarni Ahmad. The first of such cases is that of West Pakistan Province v. Bashir Ahmad Qureshi , in which it was held that the reversion to one's permanent post from a higher post whereat the reverted servant was officiating for an indefinite period or "until further order", while his juniors were allowed to continue to officiate in higher posts, did not amount to "reduction in rank" within the meaning of Article 240 of the Government of India Act, 1935, or its corresponding provision in Article 181 of the 1956-Con-stitution. This view was reiterated in another case decided in the same year, namely, Pakistan and another v. Qazi Syed Hikmat Hussain , where it was held that in case of reversion from an officiating appointment, notice to show cause was not necessary as this reversion could not be treated as 'reduction in rank". The next case is that of the State of Pakistan v. Mehrajuddin , in which their Lordships held that an officiating appointment did not give any vested right to the officiating incumbent of the post and that the Government could at any time terminate the officiating appointment of any officer and revert him to his original post which reversion did not in any case amount to "reduction in rank". Their Lordships further held that the officiating appointments are by their very nature tentative, that is, in the form of a trial of the officer to test his capacity and competency for higher responsibilities, and consequently officiating appointments should always be assumed to have been made subject to the Government's power to terminate this appointment. The same view was taken in Province of East Pakistan v.1 2 3 4 5 Muhammad Sajjad Ali Mazumder and Muhammad Amin Durrani v. Government of West Pakistan and another . As recently as 1969 their Lordships again reiterated this view in Badrul Hague Qureshi v. Province of West Pakistan and affirmed their dictum in Province of East Pakistan v. Muhammad Sajjad Ali Muzumder, which reads as follows : "Mr. Mazumdar was merely officiating in a 'listed post' of District Magistrate, to which he was not entitled as of right, by virtue of his substantive status in the Provincial Civil Service. In reverting him to his substantive position, the Government deprived only of his officiating rank, and to treat such an action as constitution reduction is clearly misconceived. The error came before this Court in the case of Pakistan v. Hikmat Husain where it was clearly held that when a person is reverted from an officiating appointment to his substantive position, there is no question of his reduction in rank. The reason is that the officiating position which he holds is of a "tentative and conditional nature, dependent on the exigencies of the public service, as well as the opinion formed by his superior officers as to his capacity for performing the duties of the higher office, in which he is being tried.
He does not hold the rank in any vested sense, but only tentatively and subject to a number of contingencies as well as to the opinion of his superiors. His true rank in the sense of a status which belongs to him as of right, in his substantive rank in the service to which he belongs, and if he were reduced below that rank, as a punishment or otherwise, certain legal consequences might arise.
But no such consequences arise where the Officer is withdrawn from temporary occupation of a position superior to that to which by the rules of his service he is entitled, and, therefore, the action of the Government in respect of Mr. Mazumdar despite the use of expressions indicating re-duction in rank, does not in fact amount to such reduction. Such an action could have been taken in consequence of the inquiry, by reason of the conduct, which was brought to light, but it was necessary to describe it as a punishment imposed under the law relating to the inquiry. In other words : it was entirely within the unfettered discretion of the Government to terminate the officiating appointment of Mr. Mazumdar and to restore him to his substantive position in the service to which he belongs. Consequently, the action of the Government is "not susceptible of control by a writ of madamus or otherwise howsoever."
The same view was taken in the Peshawar decision in Ghtdam Moinuddin v. Government of West Pakistan and another , to which decision one of us was a party. In this case the petitioner had acted as Extra-Assistant Commissioner for eight years before his reversion to his substantive post of Tehsildar, which reversion became necessary as the Public Service Commission disapproved the petitioner's appointment as Extra-Assistant Commissioner. This Court, following the rule laid down by their Lordships of the Supreme Court in the cases noted above, held that this reversion could not be treated as "reduction in rank" so as to require the Government to serve a notice of show cause on the petitioner.
4. In view of the overwhelming authorities against the petitioner's contention that his reversion amounted to reduction a in rank, Mr. Sami Ahmad then put forth two new propositions, that is : (1)No intimation was given to the petitioner that his appointment as Communication Officer was only in an officiating capacity, and in the absence of such mention in the letter of appointment or in the relevant notification, the petitioner's appointment should be treated as having been made against a substantive vacancy in a substantive capacity, and (2)If the petitioner's appointment was in an officiating capacity, then in that case he has become permanent in the post of Communication Officer by reason of rule 7 of the Civil Defence Organisation Rules, 1962, on lapse of four years from the date of his appointment, which he said was 1st June 1961.
5. In support of the first of these propositions, Mr. Sami Ahmad placed reliance on Fundamental Rule 9(19) and on the Government Instructions on this subject, and on the decision of this Court in Laique Ahmad Siddiqui v. The, Federation of Pakistan. We have failed to understand how6 7 8 9 10 Fundamental Rule 9(19) is of any assistance to the petitioner as this rule, which is reproduced hereunder, merely defines as to what is an officiating appointment : "909). Officiate.--A Government servant officiates in a post when he performs the duties of a post on which another person holds a lien. A local Government may, if it thinks fit, appoint a Government servant to officiate in a vacant post on which no other Government servant holds a lien."
The relevant part of the Government instructions, contained in the Cabinet Secretariat (Establishment Branch) Office Memorandum No, F. 13/10/49-Estt. (S E) dated 10-11-1949, as corrected vide their Office Memorandum of even number dated 6-10-1950 (Originals in file No, 1/117/49-Estt.) reads as follows : "2. It is essential that the nature of an appointment should be clearly indicated in the order making the appointment and in the notification where the appointment is made to a `gazetted' post. Is the order of appointment is made in terms of an officiating appointment and no period for which it is made is specified the implication will be that the person concerned will continue to officiate indefinitely and his subsequent reversion from it may amount to 'reduction' within the meaning of rules 49 and 55 of the Civil Service (Classification, Control and Appeal) Rules, and section 240 (3) of the Government of India Act.
3. Similarly, if a person is appointed to officiate on a provisional basis, pending the examination of the claims of other possible candidates, or for other reasons, it is necessary that this should be clearly set out in the order of appointment, so that if the arrangement has to be altered subsequently, there should be no legal bar to the change.
4.............................................
5. Unless, therefore, it has been decided that the Officer should in due course be confirmed in the post to which he is appointed in an officiating capacity, the order of appointment should invariably indicate that it is only for a limited period and the Officer is liable to be reverted to his substantive appointment. In order that there should be no room for doubt as to the intentions of Government, and to ensure that the orders of appointment should be made and notified in the following terms :- Mris appointed to officiate as vice Mr granted leave or until further orders, on probation for a period of .. . months, extensible by order either before or after its termination, by a further period not exceeding .. . months, provided that, if no order has been made by the day following the termination of either of the afore-mentioned probationary periods, the appointment shall be deemed to be held until further orders."
On our query, Mr. Sami Ahmad agreed that these instruction did not carry any mandatory effect but were only directory or advisory in nature. If so, then violation of these instructions would not render any officiating appointment as permanent appointment. Mr. Sami Ahmad then referred to this Court's decision in Laique Ahmad Siddiqui v. The Federation of Pakistan, in which it was held that if in the letter of appointment the words "temporary" or "officiating" are not used, the appointee should be deemed to have been appointed to the particular post in a permanent capacity. This case, in our opinion, proceeds on the reasoning that the appointee should know as to whether his appointment is in a temporary or officiating capacity or in a permanent capacity, and that it is unjust to revert an appointee to his original post, after having allowed him to remain in a post for a long period of time under the impression that he is holding the post permanently. Without expressing any opinion as to the correctness of this rule, we are of the view that this) decision can be of assistance to the petitioner only if he was no aware that his appointment was only in an officiating capacity.
But the record shows that the petitioner was fully aware that his appointment was not permanent and that he was acting as Communication Officer only in an officiating capacity. The petitioner has himself produced his two applications to the Government. One is dated 27th June 1961 (page 97 of the record), the first paragraph of which reads as follows : "I have the honour to say that I have been officiating in the permanent post of Communication Officer since June 1959. As Mr. S. A, W. Razvi who was holding lien on this post has retired from service with effect from 1st June 1961, I beg to request that 1 may please be confirmed in the post of Communication Officer vice Mr. S. A. W. Razvi.
The other application is dated 6th November 1962 and is on pages 99-101 of the record, the relevant portion of which reads as follows : "(1) On the recommendation of the Pakistan Public Service Commission I was appointed to the post of Staff Officer in the Civil Defence Organization, Karachi in the scale of Rs, 250-20-450 w. e. f. 14-2- 1951 and was subsequently confirmed in that post.
(2)On 4-5-1953, I was appointed as Training Officer in the scale of Rs, 500-25-600 (subsequently revised to that of Rs, 350-20-450--EB--25-6u0).
(3)On 8-6-1956, I was appointed as Administrative Officer in the scale of Rs, 350-20-450--EB-25- 600.
(4)On 27-6-1959, I was appointed to officiate in the present post of Communication Officer in the same scale of Rs, 350-20-- 450--EB-25 --600, which I have been holding to date.
(5)Since Mr. S. A. W. Razvi, who was confirmed the post of Communication Officer, has retired from the Government service, his lien against this post has finally terminated with effect from May 31, 1961.
2. I, therefore, beg leave to request for my confirmation in the post of Communication Officer w. e. f.
31-5-1961, on the following grounds :
(1) I have been officiating in the post of Communication Officer w. e. f. 27-6-1959 to the entire satisfaction of my officers.
(2)...............................................
Even in his petition, in paragraph 14, the petitioner admits that his appointment as Communication Officer was in an officiating capacity, as he expressly states that he had been holding the post of Communication Officer since 17-1-1961 "in a quasi-substantive capacity". Thus, right up to the time the petitioner came D to this Court under Article 98 of 1962-Constitution, the petitioner had full knowledge that throughout he had been acting as Communication Officer only in an officiating capacity. Therefore, the rule laid down in Laique Ahmad Siddiqui v. The Federation of Pakistan cannot be invoked by the petitioner.
6. As regards the second proposition on which Mr. Sami Ahmad relied, it would be useful to reproduce rule 7 of the Civil Defence Organization Rules, which reads as follows :- "7. Probations. --(1) A person appointed to a post against a substantive vacancy shall remain on probation for a period of two years, if appointed by initial recruitment and for a period of one year, if appointed otherwise.
Explanation.--Officiating service and service spent on deputation to a corresponding or a higher position may be allowed to count towards the period of probation.
(2)..............................................
(3).............................................
Now, these Rules, in our opinion, would not apply to the petitioner. The Rules came into force on 6th November 1962 whereas the petitioner's appointment as Communication Officer was made in January 1961. It is difficult to give retrospective effect to this rule. Even if we were to do so, then the Rules as a whole would have to be applied to the petitioner and if this was done, then, rule 4 would operate against the petitioner as this rule, read with Appendix "A" thereto, requires that appointment to the post of Communication Officer shall be made by direct or initial recruitment.
Another difficulty in the petitioner's way with regard to this rule, is that rule 7 is applicable to probationary appointments against substantive vacancies. A probationary appointment is quite different from an officiating appointment. The Explanation to rule 7 itself makes a distinction between a probationary appointment and an officiating appointment. A probationary appointment is a preliminary step towards the permanent appointment of a person to a particular post, that is, the appointee is taken on trial, so that if he is judged fit to hold the appointment, he is made permanent in the post, otherwise he is either discharged from service or sent back to his original post. As officiating appointment to a permanent post is made when the incumbent substantively holding the post is on leave, or when this post is vacant and no substantive appointment has yet been made to that post and the exigencies of the official business make it necessary that some person should be immediately appointed to discharge the function of this post. in such appointments there is no intention to make the appointee permanent in the post if he is judged fit to held that post, which intention is generally inherent in probationary appointments. This position is also borne out by Audit Instruction No, 2 under the Fundamental Rule 9(6), which provides that the term "probationary" does not cover a Government servant who holds substantively a permanent post in a cadre and is appointed "on probation" to another post. Thus, even if the Civil Defence Organization Rules, 1962, were held to apply to the petitioner, rule 7, on which the petitioner has placed reliance does not help him in any way. This rule is applicable to probationary appointments, which is quite different from officiating appointments. Thus, both the propositions canvassed by Mr. Sami Ahmad carry no force.
7. Mr. Sami Ahmad then fell upon a last argument, which is that under Article 8 of the West Pakistan Administration (Merger of the Federal Territory of Karachi) Order, 1961 President's Order No, 9 of 1961), even if the petitioner was reverted from the post of Communication Officer, then the post to which he was reverted should carry the same emoluments as to salary etc., which were available to the petitioner as Communication Officer. The learned Advocate sought to support this argument by the Proviso to Article 8(2) of this Order, which provides that the terms and conditions of service relating to pay, pension and leave of any person appointed by the Central Government before the date of merger in connection with the affairs of Karachi shall not be varied to his disadvantage after merger of Karachi in West Pakistan. According to Mr. Sami Ahmad, the scale of pay of Communication Officer is Rs, 455-35-525-40 --845, whereas that of the Staff Officer is Rs, 350-35- 525-40-685. In other words, according to Mr. Sami Ahmad, the petitioner should hold a post, or continue as Staff Officer on the same salary which was available to him as Communication Officer.
But we are unable to read the Proviso in question according to the interpretation of Mr. Sami Ahmad. What the Proviso requires is that the terms and conditions of service relating to pay, etc. shall not be varied to the disadvantage of any person. If the petitioner held the post of Communication Officer only in an officiating capacity, which, in our opinion, he did, then one of the conditions of this appointment was that he could be reverted or sent back to his original or substantive post of Staff Officer at any time. Therefore, in sending the petitioner back to his substantive post, there was no variation in the terms and conditions of his service.
8. We have dealt with all the arguments canvassed by Mr. Sami Ahmad but we are unable to agree with any of his contentions. No other argument was put forth before us. In our opinion, there is no substance in this petition, which is accordingly dismissed. However, in the special circumstances of this case, we make no order as to costs.
9. Before closing, we may refer to the statement made at the bar that the post of Training Officer in the Civil Defence Organization in Karachi has fallen vacant due to the retirement of the incumbent, namely, Mr. Muhammad Sharif Choudhary. If so, that it is expected that the petitioner's appointment against this post would be considered by the Government as, after having served in a superior post carrying higher emoluments for nearly eight years, the petitioner has been reverted to his original post of Staff Officer, which reversion, it cannot be doubted, has created hardship for the petitioner.
PLD 1965 SC 208 PLD 1968 SC 112 PLD 1959 SC (Pak.) 93 PLD 1959 SC (Pak.) 107 PLD 1959 SC (Pak.)107 PLD 1962 SC 71 PLD 1966 SC 99 1969 SCMR 244 PLD 1969 Pesh. 299 PLD 1957 Kar. 54