ZIAULHAQ A. CIHANNA, J.-This constitutional petition, which was filed under Article 98 of the Constitution of 1962, seeks to challenge the direction contained is certain orders passed by respondent No. 1 and the Secretary, Health Department, of the erstwhile Government of West Pakistan, restricting the petitioner to his own grade and scale of pay white posting him to higher posts and prays for a direction to the effect that the petitioner be appointed to a Senior Class I post,
2. The petitioner was appointed on 12-10-1963 as a Class H officer in the Health Department of the erestwhile Government of West Pakistan. After his name was approved by the Public Service Commission, he was confirmed in the said class on 16-5-1965. By an order dated 2-9-1968 issued by the Secretary, Health Department, of the erstwhile Province of West Pakistan; the petitioner was appointed on his own scale of Class 11 to the newly created post of Divisional Blood Transfusion Officer, Karachi which was- a post in the Junior Class-I scale. Subsequ--ently, by an order dated 30-10-1969, the said Secretary placed the services of the petitioner as the disposal of the Director, Health Services Quetta Kalat Region, who vide his order dated 18-11-1969 posted the petitioner as District Health Officer, Chaghai/Kharan, which was a post in the Class-I scale. It was Specifically mentioned in the latter order that the officiating appointment was purely temporary and until further orders and did not confer any right upon the officer concerned to claim Substantive appointment or to seek seniority, over those who may be senior to him. The petitioner continued to hold the post of District Health Officer Chaghai/Kharan till 11-3-1970, when he was transferred by the Director, Health Services, Quetta, as Assistant Director (Public Health), Quetta/K41at region on his own pay scale of Junior Class-l. It may be mentioned here that prior to the said order, by an order of the Governor of West Pakistan, dated 9-5-1969, all Class-II posts in the Health Depart--ment of the Government of West Pakistan bad been upgraded w. e. f. 1-3-1969 to Junior Class-I. On 12-7- 1970, the Director, Health Services, Quetta and Joint Secretary to Government of Baluchistan transferred the petitioner from the post of Assistant Director (Public Health, Quetta to officiate as District Health Officer, Lesbella, at Uthal, which was a Senior Class-I past, again on his own pay scale of Junior Class-I. Subsequently, the Director, by his order-dated 18-3-1971, transferred the petitioner, as Medical Officer incharge of Zhob Militia Hospital, FortSundeman, which is a post in the Junior Class-I. As to the case of the order dated 18-9-1969, it was specifically stated in this order that the officiating appointment/posting orders were purely temporary and until further orders and did not confer any right upon the officers concerned to claim substantive appoint--ment or to seek seniority over those who may be senior to them.
3. The petiti4set had originally filed a Constitutional Petition No. 19 (Q)/71 at Quetta in which he bad alleged that his transfer from the post of District Health Officer, Lasbella, to the post of Medical Officer, Zhob Militia Hospital amounted to reduction In rank. H% however, later wanted to amend his petition to claim pay of an officer of Senior Class-1 for the period that he held a Senior Class-I post.
This application was heard by a Division Beach of this Court, which by its order dated 16-9-1971 declined to permit him to do so, as in Its opinion such an amendment would require substantial alteration of the whole petition, and while dismissing his petition, gave him permission to file a fresh petition. The petitioner accord--ingly filed -the present petition seeking the relief stated above.
4. The contention of the petitioner is that having been appointed first to a Junior Class-I post and subsequently to a Senior Class-I post, he is entitled of the pay scale admissible for such posts and the orders of Government of West Pakistan and the Director, Health Services, Quetta, restricting his pay to his own scale are ultra vires. In support of his contention he has relied upon the ruling of the Dacca High Court in Muhammad Hashim v. Post Master-General and others (1).
5. The learned Advocate-General, Quetta, who appeared for respondents 1 and 2, bas contended that the impugned orders restricting the petitioner to his own scale and grade while appointing him to a higher post, were made in pursuance of the provisions of Fundamental Rule 35. The said rule reads as under: - "35-A Local Government may fix the pay of- an officiating Government Servant at an amount less than admissible under these rules.---
6. In the Dacca case, on which the petitioner has relied, a Class-11 Superintendent In the Postal Department of the Government of Pakistan was appointed to officiate as Class-I Superintendent on his own pay of Class-II. The High Court held, on the basis of the provisions of Fundamental Rules 22 (a) (PLD 1969 Dacca 254) and 31, that the petitioner was entitled to the salary admissible to the Superintendent, Class-I, Junior Grade, in which he had officiated continuously for four years and the orders restricting his pay to his own scale of Class-II were without jurisdiction. It may be pointed out that Fundamental Rules 22 relates to the initial substantive pay of a Government servant who is appointed substantively to a post in a time scale of pay. In the instant case, although the petitioner was substantively appointed to a Class-11 post, be was not substantively appointed to any Class 1 post. His appointment first to a post in the Junior Class-1, and subsequently to a post In the Senior Class-I were purely on officiating, temporary or ad hoc basis. His case, therefore, would not be covered by Fundamental Rules 22, but by Fundamental Rule No. 31 which reads as follows:- ---F. R.
31. Subject to the provisions of rules 26 (c), 30 and 35 a Government servant officiating in a post will draw the presumptive pay of that post provided that, except in the case of a Government servant whose appointment to the post in which he is officiating was made on his own request under rule 15 (a), if the presumptive pay of the permanent post on which he holds a lien or would hold a lien had his lien not been suspended, should at any time be greater than the presumptive pay of the post in which, he offici--ates, he will draw the presumptive pay of the permanent post."
7. A perusal of the aforesaid rule makes It clear that it is subject to Fundamental Rule No. 35 which appears to confer wide powers on the Government to fix the e pay of an officiating Government servant at a scale lower than the one admissible for the post which he is holding. The Dacca authority has not referred to this rule, to which the provisions of Fundamental Rule 31 are clearly subject. We, therefore, are inclined to the view that in those cases where fundamental Rule 35 is applicable, the Dacca ruling would not be applicable. It is true that according to rule 3 of the West Pakistan (Gazetted) Civil Services (Pay Revision) Rules, 1964, every Government servant to whom the said rules apply and who has not opted or deemed to have opted for the existing (old) Scales. of pay, holding a post included in the Schedule to the said rules and posts of Junior Class-I and Senior Class-1 in the Health Department are included in the said Schedule is entitled to tug new pay scales prescribed in the said Schedule for such a post, but the provisions of the said rule must be read subject to the provisions of Fundamental Rule 35 and cannot be considered to have superseded the latter rule. The raison d'etre for F. R. 35, which is applicable to individual cases only, appears to be that persons who may not be qualified for or entitled to promotion or certain appointments, may never--theless be required, in the exigencies of public service to work against or in such posts and appointments. It would obviously be unfair to their seniors or persons entitled to or qualified for such appointments, who may temporarily not be available, that the persons so appointed should be placed at an advan--tage over them. It wou13 also be unfair to the Government that it should pay to an employee a scale of pay although the employee is not qualified for or entitled to the post which he is provisionally holding.
8. In Syed Muhammad Ashraf Shah v. Province of Wept Pakistan (PLD 1973 Lab. 42), a learned Single Judge has held that an employee who was promoted with retrospective effect was entitled to the pay of the post from the dale be was so promoted and the orders refusing him arrears of pay for the said post on the plea that he had not actually worried in the higher post and this was simply a case of pro forma promotion, were considered to be without any, legal effect. 1n the reported case, however, the employee claiming arrears of pay for the higher post was entitled to that post and had actually been promoted to the sale post with retrospective-effect, which is not the position in the instant case. 1n no order, which the petitioner has produced has it been indicated that he has been or is being promoted to a higher post grade or scale.
9. In the instant case, the appointment of the petitioner from Class-11 to the Junior Class-I post of Divisional Blood Transfusion Officer was made by Government, and although the order of appointment does not specifically refer to Fundamental Rule 35, since the Government undoubtedly C possessed powers under the said rule to fix the pay of an officiating Government servant at an amount less than the pay prescribed for the post in which he was officiating, the direction In the said order would appear to have been in exercise of the powers under the said rule and would thus appear to be unexceptionable.
10. The order of the Director, Health Services, Quetta/ Kalat region, dated 18-111969, after the services of the petitioner were placed at his disposal by the Government of West Pakistan's letter dated 30- 10-1969, posting the petitioner as District Health Officer, Chaghai/Kharan, cannot be considered to be a valid appointment of the petitioner to a Senior Class-I post, because under the West Pakistan Health Department Delegation of Power Rules, 1962, the appointing authority for Senior Class-I Officers is the Government and not the Director. Since the Director was not competent to promote or appoint a Junior Class-I Officer to a Senior Class-I post the appointment of the petitioner to a Senior Class-I post by the Director would be clearly irregular and would confer no benefits of a Senior Class-1 Officer on the petitioner. The Director appears to have realised his error and consequently, vide his letter-dated 10-12-1972, directed that the petitioner, while posted as District Health Officer, Chaghai/Kharan, was to draw pay In his own scale admissible to a Junior Class-I Medical Officer. It would thus appear that what actually happened was that a Junior Class-I Officer was temporarily appointed to hold charge of a Senior Class-I post on his own pay and grade, without promoting him. The order of the Director, Health Services, Quetta/Kalat Division dated 12-3 -1970, transferring the petitioner from the post of District Health Officer Chaghai/Kharan to the post of Assistant Director (Public Health) Quetta --Kalat Division, which also is stated to be a Senior Class-I post, similarly did not confer any benefits or rights of a Senior Class-I officer upon the petitioner.
11. The order of the Director, Health Services and Joint Secretary, Baluchistan, dated 21-7-1970, transferring the petitioner from the post of Assistant Director (Public Health) to officiate at District Health Officer, Lasbella on his own pity scale, although it would be deemed to be an order of the Government, would not entitle the petitioner to claim pay in the Senior Class-I scale, because 'the said order specifically provided that he would continue to draw his own pay in pay scale of W. P. H.
S. I.) (JR), which direction appears to have been issued in exercise of the powers vested in Government under Fundamental Rule 35.
12. Since the petitioner at no time appears to have been promoted by competent authority to a Senior Class-I post, his appointment as Medical Officer, Zhob Militia Hospital, vide order of the Director, Health Services, Baluchistan, dated 18-7-1971, cannot be considered to be a reduction in grade. Even if the petitioner had been validly appointed by a competent authority to officiate in a Senior Class-I post, his reversion from such post to his substantive grade, which is admittedly Class-1 (Junior), cannot be considered to be a reduction in rank, as held by the Supreme Court in Pakistan v. Hikamat Hussain (PLD 1959 SC (Pak.) 107), The State of Pakistan v. Mehraj Din (PLD 1959 SC (Pak.) 147) and Dr. Muhammad Amin Durrani v. Government of West Pakistan (PLD 1966 SC 99).
13. The petitioner also contended before us that the Director. Health Services was not competent even to transfer Class-1 Officers and that this power vested solely in the Government under the West Pakistan Health Department Delegation of Power Rules, 1962. On our drawing his attention to the amendment in the said rules empowering the Directors to transfer Class-1 Officers within the respective regions, the petitioner contended that on the dissolution of the Province of West Pakistan w. e. f. 1-7-1970, there could be no more regions and only Provinces and therefore this power could not, after the said date, be exercised by the Director. We are not impressed with this argument. Merely because the Province of West Pakistan was dis--solved and the territories of the Province .of Baluchistan were made co-extensive with the Health region of Quetta/Kalat, as it existed immediately before the dissolution, this does not mean that the said region had ceased to exist or that the Director had lost the powers which he previously possessed of transferring Class-I officers within his region. These powers of his were specifically saved by Articles 17 (4) and 19 (1) of the Province of West Pakistan (Dissolution) Order, 1970, and he con--tinued to have those powers, subject of coarse to the powers of the Government to transfer a Class-I Officer within the Province.
14. For the foregoing reasons we are of the opinion that there is no merit in the petition. We wou1I accordingly dismiss the same. In the circumstances of the case, there would be no order as to costs.