M. S. H. QURESHI, J.-This writ petition filed under Article 98 of the Constitution of Pakistan calls in question the order dated the 27th of November 1969, of the Ministry of Home and Kashmir Affairs (Home Affairs Division) Government of Pakistan, whereby petitioner M. Ibrahim was, on reversion from deputation with the Ministry of Foreign Affairs, asked to join as Assistant Director in the Directorate of Immigration and Passports, Rawalpindi.
2. The facts which constitute the background of this petition are that the petitioner was appointed, in consultation with the Central Public Service Commission, as Passport Officer in the year 1952 which post was in 1958 re-designated as Assistant Director, Immigration and Passports. On 29-4- 1965 his services were placed on deputation at the disposal of the Ministry of Foreign Affairs to work as Second Secretary in the Pakistan Embassy at Rangoon. While he remained so on deputation the post of a Deputy Director fell vacant in the Immigration and Passports Directorate from 12-4-1968.
The petitioner was promoted to this post on a pro forma basis, w.e.f. 12-4-1968 until further orders by the Ministry of Home and Kashmir Affairs (Home Affairs Division) order, dated 22-5-1963. Since the petitioner was not available being on deputation, the next man M. N. Ghulamally, Assistant Director, I & P, was by the same order appointed to officiate as Deputy Director until further orders.
The petitioner was recalled to his parent department on 3-7-1969 but he was kept waiting for a posting and was eventually asked by the impugned order dated 27-11-1969 to join as Assistant Director, Immigration and Passports. The petitioner made a representation on 26-12-69 and filed a petition to the President on 4-3-1970, but failing to receive any reply to either, he invoked the writ jurisdiction of this Court by the present petition.
In the written statement to the petition filed by the Secretary to the Government of Pakistan in the Ministry of Home and Kashmir Affairs, it was stated that the promotion of the petitioner to the rank of Deputy Director had been pro forma in an officiating capacity, that certain facts had come to the notice of the Government during the petitioner's working as Second Secretary in the Pakistan Embassy in Burma, relating to passing of information to an under-cover intelligence officer of a foreign Mission, that the matter was subject of an inquiry, and that till the disposal of the charges against him, he could not be relied upon in a superior appointment.
4. Raja Muhammad Akram, the learned counsel for the petitioner raised the following contentions:-
(i) that the petitioner having been promoted "until further orders", the impugned order amounted to his reduction in rank which could not be done without drawing formal proceedings against him, and without giving him an opportunity of being heard;
(ii) that M. N. Ghulamally, being next below to the petitioner in the seniority list, could not be allowed to hold the post of a Deputy Director until all the others senior to him had been promoted; and
(iii) that the impugned order not having been passed by the` President who alone was competent to pass such order in respect of the petitioner who is a Class I Officer, is of no legal effect.
5. The order dated 22-5-1968 whereby the petitioner had been promoted pro forma to the post of Deputy Director reads as follows:- "Mr. M. Ibrahim, Assistant Director, Immigration and Passport, at present officiating as second Secretary in the Embassy of Pakistan in Burma at Rangoon is appointed pro forma as Deputy Director, Directorate of Immigration and Passport, Karachi, with effect from the 12th April 1968, (forenoon), until further orders."
6. Promotion on a pro forma basis is made of Government servants who are not immediately available because they are on deputation to another department or are in foreign service, the intention, as given in Fundamental Rule 30(10), being that a Government servant out of his line should not suffer by forfeiting acting promotion which he would otherwise have received had he remained in his regular line.
7. The learned counsel for the petitioner contended that the order of pro forma promotion having been "until further orders" the reversion of the petitioner to the post of Assistant Director amounted to reduction in rank. In this connection he referred to the following comments appearing on page 28 of Government of Pakistan C'M Division Establishment Manual, Volume I: "In paragraph 2 of the Establishment Division Office Memorandum No. 13/10/19-Ests. (SE), dated the 10th November 1949 (S I. No. 1) it was laid down that in cases where an officiating appointment is made for an indefinite period, the implication would be that the person concerned would continue to officiate, indefinitely and that his subsequent reversion would amount to `reduction in rank' within the meaning of rules 49 and 55 of the Civil Services (Classification, Control and Appeal)
Rules and section 240(3) of the Government of India Act, 1935)."
In support of his contention he also relied on Abdul Majid Sheikh's case (PLD1965SC208).
8. Since the Government's reply is that the petitioner had been promoted in an "Officiating" capacity, it becomes necessary to examine whether petitioner's promotion to the post of Deputy Director had been made on an officiating basis. The order itself as reproduced in para. 5 ante does not make any mention of the word "officiating" but from the office noting of the Ministry contained in their file No. 4/15/66-Adm.I&P page 52, which file had been placed in the Court and seen by the learned counsel for the petitioner, it is abundantly clear that the proposal of the Ministry which had been put up for approval of the Minister had been for his promotion on an officiating basis. The actual words occurring in para. 174 of the said noting dated 13-5-1968 are "As a vacancy in the grade of Deputy Director now exists in the Directorate of Immigration and Passports, Mr. M. Ibrahim the senior-most Assistant Director who is already approved by the D. P. C. May be appointed to officiate as Deputy Director (West) with effect from 12-4-1968. But since Mr. M. Ibrahim is still on deputation to the Embassy of Pakistan in Rangoon as Second Secretary, he may be appointed in absentia . . . . .". The proposal had been approved without any comment, by the Minister through the Secretary of the Ministry. The draft order which was subsequently put up and on the basis of which the order dated 22-5-1968 was issued, was therefore, in pursuance of the above decision of the Ministry. There is, however, nothing in the Ministry's aforesaid file to show that the omission of the word "officiating" in the draft order had been deliberate. Since the material on the basis of which the order dated 22-5-1968 had been issued, has been placed before us and it does not show otherwise, we have no option but to hold that the pro forma promotion of the petitioner had been essentially in the nature of an officiating promotion.
9. This being so, the petitioner cannot say that his reversion from an officiating appointment amounted to reduction in rank. It is, by now, well established through a number of pro-- nouncements of the superior Courts in this country, that reversion from officiating higher post to one's permanent post does not amount to a reduction in rank. In this connection reliance can be placed on Province of West Pakistan v. Bashir Ahmad Qureshi (PLD 1959 SC (Pak.) 93), Pakistan v.
Qazi Syed Hikmat Hussain (PLD 1959 SC (Pak.) 107), Pakistan v. Mehraj-ud-Din (PLD 1959 SC (Pak.)
147), Province of East Pakistan v. Muhammad Sajjad Ali (PLD 1962 SC 71), Dr. Muhammad Amin Durrani v. Government of West Pakistan and another (PLD 1966 SC 99), Collector of Central Excise and Land Customs v. A. K. M. Walliullah Chaudhury (PLD 1966 SC 788) and Ata Muhammad v.
Government of West Pakistan (1970 SCMR 91). In Chairman, East Pakistan Railway Board v. Abdul Majid Sardar (PLD 1966 SC 725), their Lordships of the Supreme Court held that even reversion of a person who had been "temporarily" promoted, did not amount to reduction in rank.
10. The commentary on page 28 of the Establishment Manual referred to by Mr. Akram and reproduced in para. 7 ante, is not relevant because the same was based on the interpre--tation given in some earlier cases decided by the Courts. This is clear from the further commentary appearing in para. 2 on page 29 of the said Establishment Manual which reads as follows:- "The above formula was adopted on the advice of the Ministry of Law. However, as enquiries have been received from Ministries from time to time in regard to the correct interpretation of the words `until further orders', the matter has again been carefully considered in consultation with the Ministry of Law, and it has been held that when an officer is expressly appointed in an officiating capacity for an indefinite period or `until further order,' the Government can at any time terminate his officiating appointment and revert him to his original post, even if such reversion may amount to a review of the earlier order. It has further been held that such reversion will not constitute `reduction in rank' and will not attract the provisions of either Article 181 of the late Constitu--tion or of the Government Servants (Efficiency and Discipline) Rules, 1960. This interpretation of the expression `until further orders' is based on judicial decisions."
The judicial decisions referred to above obviously mean the judicial decisions some of which have already been cited in the foregoing. Paragraph.
11. Nor is Abdul Majid Sheikh's case of much help to the petitioner. Abdul Majid Sheikh, the appellant therein, had been appointed temporarily until further orders to a permanent post but his services had been terminated by virtue of a con--dition in the terms of his employment which made his service liable to termination on 14 days' notice. It was held (per A. R. Cornelius, C. J.) as follows :- "An employee holding an appointment indefinite in duration, although not in a substantive capacity, but expressly described as temporary, is in no worse case, as was held in the case of Noor-ul-Hassan (PLD 1956 SC (Pak.) 331). It is in the sense of these propositions of law that the appellant's appointment 'until further orders' to his last post must be understood. There has been a violation of a constitutional guarantee avail--able to the appellant, and we find him to be clearly entitled to the relief he claimed."
The construction sought by the learned counsel to be put to the words 'until further orders' does not, therefore, find support from this case. If, however, there remains any doubt, the same is cleared by the judgment of B. Z. Kaikaus, J., in the same case, wherein his Lordship holding that the condition to terminate the service of the Government servant on 14 days' notice was an invalid condition, observed that "in fact, `until further orders', are words, which when used without conjunction with any con--dition of service may be of stronger import than a liability to termination of service by notice and may imply that the employment can be terminated at any time. These words are generally used in connection with officiating employment and to such cases, according to the view which this Court has been taking the officiating appointment can be terminated at the will of the appointing authority".
12. We now come to the second contention that the officer next below to the petitioner in the seniority list could not continue as Deputy Director unless the petitioner was also promoted, in terms of sub-rule (10) of Fundamental Rule 30. This sub-rule says:- "From that it follows that the fortuitous acting pro--motion of some one junior to an officer who is out of the regular line does not, in itself, give rise to a claim under the 'next below' rule. Before such a claim is established it should be necessary that all the officers senior to the officer who is out of the regular line have been given acting promotion, and also the officer next below him, unless in any case the acting promotion is not given because of inefficiency, unsuitability or leave". Apart from the requirement of suitability which the petitioner has to meet under this rule, we are of the view that the contention has no force because the promotion of the petitioner being on an officiating basis, he could always be reverted irrespective of the fact that an officer junior to him continued to remain in the higher post. It was held in Bashir Ahmad Qureshi's case already cited in para. 9 ante, that "the question of the suitability was a matter for the appointing authority to decide. If that authority finds other officers, though junior, more suitable, then in the public interest he must have power to revert the one whom he considers unsuitable. No question of inquiry arises".
13. It was also contended by the learned counsel for the petitioner that a promotion in absentia could not be on an officiating basis, for a person who is said to officiate in a post, must physically perform the duties of that post. The term "officiate" is defined in Fundamental Rule 9 (19) in the following words :- "A Government servant officiates in a post when he per--forms 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."
We find it difficult to accept the contention of the learned counsel because no rule or case-law has been cited in support of the same. On the other hand we find the following comments on' page 399 of the Establishment Manual Volume I :- .
"Ministerial Staff.-It has been decided in consultation with the Ministry of Finance, that the persons on deputation to other offices who are appointed formally (and not actually) to officiate in accordance with paragraph 5 of the Office Memorandum, dated the 31st March 3951, may be allowed to count the period of such officiating service towards increments in these higher posts, on reversion to their parent offices.
(Establishment Division Office Memorandum No. 6/15/488---MEI, dated the 30th January 1953),"
This shows that a formal promotion can be on an officiating basis. The above comments appear to be based on the instruc--tions contained in Establishment Division Office Memoranda dated the 31st March 1951 and the 30th January 1953 and although there is no mention of any particular rule under which promotions can be made formally on an officiating basis, but a presumption does arise that the instructions issued by the Government are based upon a proper construction of the rules relevant to the matter. The said memoranda, it can be said, relate to the ministerial staff to which the petitioner does not belong, and are, as such, not directly applicable to his case. But since formal promotion of Government servants on deputation, is not peculiar to the ministerial staff only, the principle that such promotion can be made on an officiating basis, is obviously of wider applicability. We, therefore, see no valid reason to hold that a promotion n absentia cannot be made on an officiating basis.
13. Coming to the last contention that the impugned order not having been passed by the President, was of no legal effect, we find that this too cannot be pressed into service for the order of promotion itself, upon which the petitioner is basing his claim had not been passed by the President. The petitioner in pressing this contention must first concede that the order of his promotion itself was incompetent, which if done will mean the inevitable collapse of his entire case.
14. In view of the aforesaid discussion the petition must fail. We accordingly dismiss it though we make no order as to costs.