MUHAMMAD AFZAL ZULLAH, J.-Jafar A.I Akhtar Yousafzai (petitioner) has, by means of this writ petition, called in question the order, dated 3rd July 1968, Appendix ('F') passed by the Director General, Geological Survey, Government of Pakistan (respondent No. 2), whereby the petitioner has been reverted from the post of Superintendent/Assistant Accounts Officer in the said Department to the Ministry of Defence, to be appointed as an Assistant; a much lower post, which he held in the Air Headquarters of the Ministry of Defence, Karachi, before his transfer to the Department of Geological Survey of Pakistan.
2. The facts of the case, most of which are undisputed, briefly stated are: that the petitioner was appointed a Lower Division Clerk in the War Department of Government of India in Master General of the Ordnance Branch, on 1st November 1941. Shortly thereafter, he was promoted as Section Recorder. At the time of Partition, he opted for Pakistan and resumed duty as Section Recorder in the office of the Chief Administrative Officer, Ministry of Defence, Rawalpindi. On 1st January 1948, he was promoted as Upper Division Clerk in the scale of Rs. 120-9-300 in the same office. On 1st October 1948, he was transferred as Upper Division Clerk in the Inter-Services Intelligence Directorate, Ministry of Defence, Karachi and on 23rd February 1952, he was promoted as Assistant in the same Department in the scale of Rs. 160-10-250-EB-15-400. On 10th August 1957, he was promoted as "Assistant Incharge" and posted in the Directorate of General Defence Purchase, Ministry of Defence, Karachi were he continued to hold this post till 1962-63 when the next important event in his service history took place.
3. On 13th October 1962, the Department of Geological Survey of Pakistan issued an office Memorandum (Annexure `A') addressed to all Ministries/Divisions/Departments asking them to forward applications of suitable candidates for filling up certain posts of Superintendents/Assistants/Accounts Assistants. The Ministry of Defence circulated this memorandum to all branches and sections of the Armed Forces Headquarters for the purpose of inviting applications. The petitioner submitted his application (Annexure B') on 25th October 1962.
As lengthy arguments have been addressed on the nature of the memorandum and the application submitted by the petitioner, therefore it is necessary to reproduce the essential contents thereof. The memorandum is shown to have been issued from "Government of Pakistan, Geological Survey of Pakistan, Quetta." The subject is "Recruitment of ministerial staff fn the Geological Survey of Pakistan". It reads as follows:- "A few temporary vacancies in the grades of Superintendent, Assistant and Accounts Assistant in the Geological Survey of Pakistan Quetta, are required to be filled In immediately the qualifications, experience required for the posts are mentioned below against each:- Superintendent
(i) 5 years service as Assistant in the Central Secretariat or attached Departments.
Rs. 250-15-400-EB-15-505.
(ii) Experience of Establishment for Budget and Account work in the Central Secretariat/Attached Departments.
(iii) Thorough knowledge of Departmental Rules and Regulations.
Assistant Accounts Assistant.
Ministries/Divisions/Departments are requested to forward applications of suitable candidates to the undersigned by the 31st October 1962, alongwith their Character Rolls. The applications should contain the following information:-
(i) NAME (ii) DATE OF BIRTH (iii) DOMICILE (iv) QUALIFICATIONS (v) DATE OF ENTRY INTO GOVERN-- MENT SERVICE (vi) PRESENT POST HELD WITH DATES OF APPOINTMENT, PRESENT DAY AND SCALE OF PAY
(vii) PERMANENT APPOINTMENT, IF ANY (viii) BRIEF HISTORY OF SERINCE AND EXPERIENCE."
The petitioner, in his application, gave the particulars as against the above-noted eight items, as follows:-
(i) J. A. AKHTER YUSUFZAL
(ii) 1st January, 1923.
(iii) PAKISTANI
(iv) B. A., LL. B.
(v) 1st November 1941.
(vi) ASSISTANT-IN-CHARGE 10th August 1957, Rs. 295.
Total Emoluments Rs. 386 in the scale of Rs. 140-10---280-EB-15-400.
(vii) ASSISTANT."
4. On 15th June 1963, the respondent No. 2 made ad offer to the petitioner of "a temporary post of Superintendent in this Department in the sale of Rs. 335-15-500-15-650 (con--solidated), subject to verification of his character and antecedents, and physical fitness" (Annexure `R/1'). It was clarified in the offer that "this is a temporary appointment and that his services are liable to be terminated at a fortnight's notice or reversion to his substantive appointment". This offer was addressed to the Ministry of Defence with a request that if the petitioner accepted it, he may be relieved immediately with instructions to report for duty to the respondent No. 2. A copy was endorsed to the petitioner.
5. It appears that the petitioner, did accept the offer where upon the following office order was issued by the respondent No. 2 on 23rd October 1963:- "Mr. J. A. Akhtar Yusufzai, an Assistant Incharge, of the Directorate General Defence Purchase, Ministry of Defence, Karachi, has been appointed to officiate as Superintendent, in toe 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 Rs. 335-15-380-20-480--EB-20-660, until further orders."
It is clear from the office order that the petitioner had assumed duty as Superintendent on 16th September 1963. On 15th May 1965, he was promoted as Assistant Accounts Officer (Annex--ure E').
The notification reads thus:- "Mr. Jafar A.I Akhtar Yusufzai. Office Superintendent in the Geological Survey of Pakistan is appointed to officiate as Assistant Accounts Officer in the same department with effect from the fore-noon of the 15th May 1965, until further orders."
The petitioner held this post which is Gazetted Class II till 3rd July 1968, when the impugned order (Annexure. 'F'), which has the effect of reverting him to a Class III post of an Assistant and bringing him down from the scale of Rs. 350--925 to that of Rs. 240-525, was passed by the respondent No.
2. Hence this writ petition.
6. The respondent No. 2 as well as the Central Government (respondent No. 1) have contested this petition. Counter-- affidavits have been filed on their behalf. Mr. Farhat A.I Khan, learned counsel for the respondents, has raised some technical objections and also some legal points. In order to appreciate them, it is necessary to reproduce the impugned order: --- "Sub: Irregular Appointment of Mr. J. A. Akhtar Yusufzai as Superintendent/Assistant Accounts Officer in the Geological Survey of Pakistan.
The undersigned has to refer to the correspondence resting with the Ministry of Defence O. M. No. 3239/239/AOK, dated 30th October 1962, on the above subject and to state that Mr. J. A. Akhtar Yousafzai, (is) permanent Upper Division Clerk and officiating Assistant/Assistant-in-Charge of Air Headquarters under the Ministry of Defence, was appointed by transfer to officiate against a temporary post of Superintendent in the Geological Survey of Pakistan on 16th September 1963. He was subsequently promoted to officiate to the Gazetted Class II post of Assistant Accounts Officer on 15th May 1965, in the same organization. However, a number of representations were received against this appointment.
2. After consideration of the full facts and advice of the Establishment Division, obtained in pursuance of Rule 10 of the Rules of Business, 1962, it has been found that the appointment/by transfer of Mr. Yousafzai as Superintendent was not in accordance with the instructions issued by the Establishment Division, on the subject and his promotion to the post of Assistant Accounts Officer was irregular. Thus the orders made by this Department to this effect were based on the mistaken view of the case. It has, therefore, been decided to rectify the administrative irregularity by recalling the previous orders and reverting Mr. Yousafzai to his parent office.
3. Mr. J. A. Akhtar Yousafzai will accordingly be relieved of his duties in the Geological Survey of Pakistan in the afternoon of 31st July 1968, with direction to report for duty to the Administrative Officer, Ministry of Defence, Karachi."
7. Prima Facie, the impugned order appears to be in contravention of Article 177 of the Constitution and on that ground alone this petition merits to be accepted. But the learned counsel for the respondents has very vehemently contested the petition on the following two main grounds:-
(i) That the appointment of the petitioner as Superintendent and also as Assistant Accounts Officer in the Department of Geological Survey of Pakistan was illegal: Firstly, because he not having served for five years in the Central Secretariat or attached departments, could not at all be appointed; and Secondly, because the approval of the Central Public Service Commission was not obtained.
(ii) that, in any case, the appointment was temporary and in officiating capacity; therefore the case being covered by Article 179 of the Constitution, the petitioner has no right to the post/s and cannot, under Article 98 of the Constitution, agitate against his reversion to the original post in his parent department.
8. It is true that recruitment to the post of Superintendent in the Department of Geological Survey of Pakistan which, admittedly, is an "Attached Department" could be made under Establishment Division O. M. No. 54/11/48-Ests (ME), dated 17th April 1950, "by promotion of Assistants serving in the Division/Department concerned" and if no suitable Assistant is; available for promotion in the Division/Department concerned, "Assistants from other Division/Departments should be considered for promotion." In pursuance thereof the office memorandum (Annexure 'A') inviting applications was issued wherein "5 years service as Assistant in the Central Secretariat or attached Departments" was laid down as one of the qualifications. When the petitioner applied (25th October 1962), he had by that time, 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-in-- Charge in the Department of Directorate of General Defence Purchase, Ministry of Defence. According to the learned counsel for the respondents, none of these two appointments can be treated as in an "Attached Department"; therefore the petitioner could not make the application, nor could he be appointed. On the contrary, the petitioner's case is that both of them are "Attached Departments", and his appointment was regular and lawful.
9. The main reliance of the respondents is on the Rules of Business (Government of Pakistan), 1962.
"Attached Depart--ment" has been defined therein as follows:- "Attached Department' means a Department which has direct relation with a Division and has been declared as such by the Government."
Sub-rule (5) of rule 3 provides that "the Attached Departments are allocated to the various Divisions as shown in Schedule III". In Schedule III, items Nos. 12 and 13, i.e. The Department of Civil Aviation and Department of Cypher, are the only two Departments which are shown as attached to the Division of Defence.
10. In a detailed note/communication by respondent No. 2 (Annexure R/3), it was explained that the service of the petitioner as Assistant/Assistant-in-Charge from 23rd February 1952 to 15th September 1963, was in the two aforementioned Departments of Air Force Headquarters of the Ministry of Defence; and because "AFHQ is neither listed as 'Division' nor an 'Attached Department" as declared in the Rules of Business of 1962, therefore, his promotion/appointment as Superinten-- dent was illegal.
11. This, it appears to us, is a very restricted connotation and is applicable to the matters which are specifically dealt in the Rules of Business of 1962. For other purposes and also for finding the position in 1952 and 1957, when the petitioner was appointed in the aforesaid two Departments, the relevant Rules of Business in force at that time and/or other sources, of course governmental, which define, explain and enumerate/treat various Departments and offices as 'Attached Departments', will have to be taken note of. This rule of interpretation of the expression "Attached Department" was followed by their Lordships of the Supreme Court in Was Ahmad Rizvi v. Pakistan (Civil Appeal No. K-44 of 1965, decided on 11th July 1967). Their Lordships dealt with the matter thus:- "Secondly, it is urged that to qualify for application of rule 8 (a), the appellant had to belong to an Attached office of Department. It is alleged that Naval Headquarters, under which the appellant is employed, does not fall within that category. We proceed to examine these two contentions.
We will take up the second point first for consideration. The learned Attorney-General relied on Rules of Business, 1962, which define `Attached Department' as a Department which has direct relations with a Division and has been declared as such by Government'. With reference to rule 3 (5), Schedule III of the Rules gives a list of "Attached Departments, declared as such by Government". Only two such Departments are mentioned in respect of the Defence Department, namely, the Department of Civil Aviation and Tourism and Department of Cypher, Naval Headquarters does not find a place in this list. The learned Attorney-General wants to draw the inference from this fact that the appellant's Department is not an `Attached department', and consequently, in terms, rule 8 (a) is not attracted to his case. This may be, however, the position under the Rules of Business, 1962, but we have to discover the position as it obtained at the time that the appellant was approved for promotion to the post of Assistant in 1952."
Their Lordships then took note of the various entries in the following publications:--
(1) Administrative Directory of the Government of Pakistan, issued by the Cabinet Secretariat on the 1st January 1950.
(2) A Government of India Publication of the year 1937, called "Ministerial Establishment (Recruitment, Promotion and Seniority) Rules."
(3) A publication named "Compendium of Naval Instructions, 1952-1962, Vol. 111, of the Pakistan Navy."
(4) Another publication of the Efficiency and O & M. Wing Establishment Division, issued in 1964.
(5) Civil List of Class I Officers under the Government of Pakistan, dated 1st January 1961.
Their Lordships also took note of two more circumstances: firstly, that the Department concerned in that case was not a subordinate office; and secondly, that the Rules of Business published in 1950 and 1957 contained no Schedule of "Attached Departments". After having considered the above material, their Lordships came to the following conclusion:- "It appears to us, after a survey of these documents, that the appellant's assertion, that he belonged to an Attached Department of the Defence Division of the Central Govern--ment, rests on a solid foundation. Either the two Attached Departments of the Defence Division, mentioned in the 1962 Rules of Business, have been specified for the purpose of those Rules only, or alternatively, earlier than the promulgation of these Rules, the position was different. Despite these Rules of 1962, however, even in the 1964 publication of the Establishment Division, there is a mention of Naval Headquarters as an Attached Department. We are, therefore, unable to agree with the learned Attorney-General that the appellant did not belong to an Attached Department or office at the relevant time."
12. Learned counsel for the petitioner had made a compara--tive study with reference to the publications noticed by their Lordships of the Supreme Court in so far as they are applicable to the present case, and took us through the various entries therein. In particular, he has relied on the Appendix of Ministerial Establishment Rules. He has also relied on the Rules of Business of 1952, subject heading: defence, in Schedule II, section B Item (v): After going through them, we felt satisfied that the Intelligence Directorate of Ministry of Defence and the Directorate of General Defence Purchase of the same Ministry were "Attached Departments" at all relevant times.
When confronted with this position, learned counsel for the respondents conceded that if the above approach is followed, then they will have to be treated as "Attached Departments", but at the same time he came out with an answer which he thought was formidable. His precise contention was that this being a case of promotion, their Lordships of the Supreme Court, repelled the contention of the learned counsel and held that the petitioner was fully qualified to be appointed as Superintendent in the Department of Geological Survey of Pakistan. In view of this finding, it is not necessary to examine, in any detail, another contention of the learned counsel that the petitioner had not disclosed in his application that he did not belong to an Attached Departments. As discussed above, there is no basis for this argument and, in any case, his application was duly forwarded by the Ministry of Defence in pursuance of the memorandum issued by the Department of Geological Survey of Pakistan. After the interview he was duly appointed and this appointment was subsequently approved by the Ministry and the Department concerned. As will be seen later, the case was also examined by the Public Service Commission at one stage and it did not raise any objection as has been now raised on behalf of the respondents.
13. The second part of the first contention of the respon--dents counsel, namely, that no approval was obtained from the Public Service Commission, therefore the appointment of the petitioner by the respondent No. 2 was illegal; has no force either. Learned counsel for the petitioner has contended that the provisions in the Constitution as to the consultation are only directory. He has relied on Dr. M. S. Quraishi v. West Pakistan Government and another (PLD 1966 Lah. 825). He has also brought to our notice Pakistan Public Service Commission Regulations 1953, issued vide No. 10/15/50-S. E. II, dated 27th March 1953, wherein it is provided in para. (3) (b) that "it shall not be necessary to consult the Commission in regard to the selection for appointment to a Central Service, Class II, of any officer by transfer from another Central Service, Class II, or by promotion, from a Central Service, Class III". Learned counsel for the respondents has not contested the relevancy of this notification nor has he urged that the clause referred to above is not applicable. In any case, it has been brought to our notice that the Department of Geological Survey of Pakistan had, by office memorandum No. Admn-I-5 (23)/63, dated 15th June 1965, intimated the Central Public Service Commission about the appointment and subsequent promotion of the petitioner, but the latter did not raise any objection to it; though it was a practice with them that whenever they did not approve of an appointment, they used to object to it. One example quoted by the petitioner is that of Mr. M. A. Majid Khan's appointment to the post of Chief Librarian, vide their letter No. F-7/29/62-S, dated 18th October 1963. These facts were not explained or contested by the learned counsel for the respondents. Though the question was not seriously argued before us, but it is doubtful whether after the appointment of the petitioner in 1963, which had been fully acted upon, the respondent No. 2 had any locus poenitentiae to annul the same on the basis of any irregularity committed by him. By this observation we should not at all be understood to have accepted the position adopted by the respondents that the appointment was, in any way, irregular.
14. In the light of the above discussion, we find no force in the second part of contention No. (i) of the learned counsel either.
15. The next contention of the learned counsel is based on the use of expressions "officiating" and "until further orders" in the two relevant appointment orders (Annexures `R/2' and `E'). Some reference to the expressions "Temporary appoint--ment" and "at a fortnight's notice or reversion to a substantive appointment" used in the offer (Annexure `R/l') and acceptance thereof, already noticed in para. 4 above, was made by the learned counsel for the respondents. Learned counsel for the petitioner also made a reference to the same offer to point out that tile expression "officiating" is conspicuous by its absence therefrom. Brut, in our view, the question involved in the contention raised by the learned counsel for the respondents has essentially to be resolved by reference to the expressions used in the two appointment orders, the back ground in which they were passed and the subsequent conduct of various Departments concerned.
16. According to the learned counsel for the respondents, it is enough in this case that both the expressions "officiating" and "until further orders", which according to him are very strong in the context, were used is the orders, to show that so long as the petitioner held these posts, in the new Department, his position was of a purely temporary Government servant and he was liable to reversion at any time. When asked whether the length of time, i.e. 1963 to 1968, in this case, and any other length of time in a hypothetical case, would make any difference; learned counsel replied in the negative. He has placed reliance on West Pakistan Province v. Bashir Ahmad Qureshi (PLD 1959 SC (Pak.) 93), Pakistan and another v. Qazi Syed Hikmat Hussain (PLD 1959 SC (Pak.) 107), The Province of East Pakistan v. Muhammad Sajjad A.I Mazumdar (PLD 1962 SC 71), The Chairman, East Pakistan Railway Board and another v. Abdul Majid Sardar (PLD 1966 SC 725). The Collector of Central Excise and Land Customs v. A. K. M. Waliullah Chowdhury (PLD 1966 SC 788), Badrul Haque Qureshi v. Province of West Pakistan (1966 SCMR 244) and Muhammad Ashraf v. Dr. Arshad Malik (1970 SCMR 241). The observations made in the above rulings no doubt support the contention of the learned counsel, provided we, agree with him that the posts, held by the petitioner, of Superintendent and Assistant Accounts Officer, throughout, were in a purely officiating and temporary capacity, as the terms are generally understood. At least in two of the rulings cited by the learned counsel himself, it was assumed that the true nature of the appointment, whether or not in officiating and temporary capacity, has to be determined keeping in view the individual circumstances of each case. They are PLD 1966 SC 725 and 788. But, in our view, this matter stands more clearly and specifically resolved by the ruling of their Lordships of the Supreme Court in the well-known case of Abdul Maji Sheikh (PLD 1965 SC 208).
17. Mr. Abdul Majid Sheikh, it is noticed in the judgment of tile learned Chief Justice, belonged to General Central Service, Class I, in a temporary capacity up to .1anuary 1959. It is further noticed in the judgment as follows:- "The order of his appointment to the Ordnance Factories in the first instance mentions a probationary period, which the appellant duly passed, and set out that thereafter he was to be retained in his appointment and after completion of three years continuous service in the gazetted cadre, he (will) become eligible for substantive appointment against permanent posts. He did not receive any such substantive appointment. So long as he was employed in the Ordnance Factories, the following condition was applicable in his case, viz: --- His services before substantive appointment will be liable to termination on giving three months notice without assigning any reasons: The learned Chief Justice then proceeded to resolve the controversy as follows:- "The question arises as to the meaning to be attached to the words "until further orders". On their face, these words seem to import absolute power in the competent authority to retain or not to retain the appointee in service. They may also be under--stood to confer upon such authority a power to appoint to a different post, in the same or a different .Grade, provided (i) such a post was available, and (ii) to appoint thereto was intra vires. It is clearly impossible to construe the expression "until further orders" as conferring absolute power of retention or dismissal upon the competent authority. The matter of public employment is governed by a complex of laws, commencing with constitutional instruments and ending with statutory rules, which have been authoritatively construed, by the Superior Courts, in relevant respects. Therefore, these words can only mean that the appointee was subject to lawful orders made by competent authority."
This matter was then discussed at some length with reference to the constitutional provisions, keeping in view the observations made in the cases of Yusuf A.I (PLD 1949 Lah. 219), Noor-ul- Hassan (PLD 1956 SC (Pak.) 331) and Ghulam Sarwar (PLD 1962 SC 142) and (respectively), with the following conclusions: "It is difficult to deny to the appellant the advantage of his holding a post in a classified section of the Pakistan Naval Establishment of Civilian Gazetted Officers. It is also clear that he can claim that, in estimating the quality of his appointment, consideration should be given to the facts that he had successfully undergone a period of probation before being appointed as Senior Scientific Officer, and thereafter had gained promotion in December 1961, to the higher post of Senior Scientific Offices-in-charge laboratory. And, in our I opinion, he can claim also that by virtue of the Gazette Notification of the 16th October 1959, which mentioned the period of his probation, and that after its successful termination he was to be deemed to hold his post "until further orders, "he was entitled to claim that he was only removable from appointment by orders of competent authority made in compliance with the Constitutional provisions and the law, i.e., the rules of his service, applicable to his case."
"The reliance of the learned Attorney-General appearing for the Central Government was placed mainly upon the contention that by expression, the appellant has been a temporary holder of each of the posts which he has held as a Civilian Gazetted Officer. He was never appointed substantively in any of these posts, and as such his case would fall under Article 179 of the Constitution. The condition of termination on 14 days' notice had been communicated in the first order of selection and was applicable throughout the period of his service there."
With the above conclusions, the order of termination of Abdul Majid Sheikh's service, on the basis that it was temporary until further orders, was declared to be without lawful authority and of no legal effect.
18. B. Z. Kaikaus, J., who gave separate for setting aside the same order, noticed the judgment of Lahore High Court in the case of Mrs. A. V. Isaacs (P h D 1954 Lah. 800). It was held by his Lordship that the condition empowering the Government to terminate the service of Abdul Majid Sheikh was invalid and it could not be legally attached to the service. In reaching this conclusion a question was posed as to whether the Government could claim that its ordinary method of filling a permanent post will be appointment of a person whose services are terminable without assigning cause, with a notice of 14 days? His Lordship proceeded to answer that if the Government be allowed to fill all permanent posts in this manner the constitutional protection granted to the civil servant will disappear. The Government could not as an ordinary and permanent arrangement fill permanent posts by employees subject to a condition of termination of employment by notice.
Barring exceptional cases, e.g., when it is an interim measure, the Government could not adopt it as a rule that the post will be filled in this manner. This, in his Lordship's view, amounted to as if the Government wanted to retain a power of arbitrary termination of service so as to defeat the constitutional guarantee. In my humble view, in substance the conclusions reached in both the judgments of the learned Chief Justice and B. Z. Kaikaus, J., are the same. The only difference is that the stress in one is more on the detailed analysis of the particular circumstances of the case, while in the other it is on the general principles.
19. A similar question arose before the Supreme Court in a recent case of Khushi Muhammad and others v. The General Manager, Pakistan Western Railway and others (PLD 1970 SC 203). Leave to appeal in that case was granted to consider whether vested rights of seniority in the cadre of an established service can be said to arise for purposes of enforcement through law only on the date of induction into the permanent section of that service or whether, in the alternative, they exist and are so enforceable even before confirmation i.e., at a stage when the incumbent is only holding a temporary post or is officiating, in the tentative or non-established section, Their Lordships noted the argument of "the learned counsel for the appellants that so far as the North Western Railway, now Pakistan Western Railway, is concerned, a large number of guards in Grade II, now Grade I, are working in an officiating capacity as guards since before the year 1940", and were pleased to hold that "in fact, appointments to this grade have generally been made in an officiating capacity, although they have almost a permanent character".
20. In such like cases when continuous officiation is not specifically authorised by any law and the Government/competent authority continues to treat the incumbent of a post as officiating,, in our 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 cases for years together. In proper cases therefore, Courts are competent to decide whether for practical purposes and for legal consequences such appointments have permanent character and, when it is so found, to give legal effect to it.
21. It is an admitted position that appointment by promotion of Assistants from "Attached Departments" to the post of Superintendent in the Department of Geological Survey of Pakistan was subject only to conditions of qualifications. It was valid and legal mode of appointment by virtue of not one but several decisions by the Establishment Division since 1949. It is nowhere laid down as condition of such type of promotion from other "Attached Departments" that the appointment would be in officiating capacity, till a suitable candidate is available from the appointing Department. The officiation in this case is not what is defined in clause (19) of Fundamental Rule 9, which was relied upon by the learned counsel for the respondents. It defines "officiate" as: "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". It is not the case of the respondents that when the petitioner was appointed as Superintendent, another person held a lien on that post. In fact, the appointment orders were not at all passed on this basis.
22. The other type of officiation on initial appointment or promotion is what has generally been noticed by their Lordships of the Supreme Court in the rulings cited by the respondents counsel.
23. In the case of Bashir Ahmad Qureshi, it was observed (at page 100) that "an officiating appointment, in the nature of things" is tentative, in the sense of putting the incumbent to proof of his capacity and competency in respect of higher responsibilities than those attaching to his permanent post or grade. Every officiating appointment is really subject to the condition of the officer and his work being found satisfactory". It was earlier observed that this kind of "officiating appointment subject to the condition that in case work is considered unsatis--factory or the officer concerned is found to be suffering from some short-coming is on the same footing as an appointment on probation". Their Lordships explained another case cited by the learned counsel, i.e., of Hikmat Hussain and observed that .In a case of officiating appointment, it was open to Government to revert the officer whenever it finds that his continuance in office is not in the public interest and further that the decision in this behalf was to be based on the subjective satisfaction of the superior officer who may not find the officiating appointee as hard working for the project on which he is employed, it is, therefore, a matter for the appointing authority to decide. Observations to the same effect are found in the case of Muhammad Sajjad A.I Mazumdar. The later rulings of the Supreme Court proceed on the same reasoning and have mostly referred to either the case of Hikmat Hussain or that of Muhammad Sajjad A.I Mazumdar. Arguments were not addressed on any other type of officiation. We are not satisfied that the use of the word "officiate" in the two appointment orders of the petitioner was to indicate the concept of officiation, as explained above, with reference to the rulings of the Supreme Court. It is so, because: firstly, we have not been referred to any rule requiring such an officiation when the appointment is made by promotion from an "Attached Department"; and secondly, the impugned order does not proceed on this basis.
24. In para. 9 of the petition it is mentioned that the petitioner's work "as Superintendent in the Geological Survey of Pakistan was found most satisfactory and on the recommendation of the Head of the Department (Geological Survey of Pakistan) in the year 1965, an efficiency honorarium was granted by the Establishment Division to the petitioner in the shape of one month's extra pay and subsequently the petitioner was found fit by the Departmental Promotion Committee for promotion to the post of Assistant Accounts Officer. The Departmental Promotion Committee selected the petitioner out of many Superintendents working in the Geological Survey of Pakistan at that time". The statement made in this paragraph has not been denied in the counter-affidavit.
Similarly, in para. 14 of the petition it is mentioned that "the appointment of the petitioner to the post of Superintendent was regarded as regular appointment by promotion by Ministry of Industries and Natural Resources through their No. GSP-1 (78)/65, dated 24th April 1968, (Annexure.
'H')". This statement of fact has also not been controverted before us. Again in para, 16 it is mentioned by the petitioner that his Department had submitted the particulars of his appointment as Superintendent and his promotion as Assistant Accounts Officer, to the Public Service Commission who raised no objection in this behalf. This statement of fact has also not been denied. And above all, in the note/communication (Annexure 'R/3') by the respondent No. 2, who is the highest officer in the Department, it is specifically mentioned that the petitioner had not only "earned good reports" but as compared to the other Superintendents he was "decidedly a better candidate" for appointment as Assistant Accounts Officer. He, in the concluding portion of his note, requested the Establishment Division and Central Public Service Commission to allow the petitioner to continue in his "present position as a special case by relaxation of ordinary rules in view of his satisfactory performance ever since". In view of the above facts, it is impossible to conceive that the continued prefix of "officiating" with the service of the petitioner was only in respect of suitability or fitness for the job. As pointed out earlier, the impugned order has not at all been passed on this basis. It seems to us that the expression "officiate" has been used in the appointment orders and has been mentioned in the impugned order, only to indicate the so-called assumed temporary character of the appointment which intention was additionally expressed by the use of the expression "until further orders".
25. As to the question whether it was in fact a temporary appointment and/or in a temporary post, it suffices to mention an averment confidently made in the petition (para. 13) to the effect that the post of Superintendent "was created in 1961 and the post still exists, and is lying vacant and similarly the post of Assistant Accounts Officer in which the petitioner was working was created in 1962-63 and has remained continuous. Under Establishment Division No. 18-Imp/64-R`MP dated 30th July 1964, issued by the Establishment Secretary (Annexure `G'), it has been the express policy of the Establishment Division to bring temporary posts which have existed from 3 to 5 years on a permanent footing, i.e., to convert them into permanent posts". In answer to this averment, the respondents, in the counter-- affidavits, stated that "the position stated in para. 13 of the petition is not denied", but tried to dilute the effect of this admission by stating in addition that "the petitioner had neither the right to hold the post of Superintendent/ Assistant Accounts Officer in the Geological Survey of Pakistan nor could he be confirmed against these posts". In the note (Annexure `R/3') also it appears that though the Public Service Commission was not consulted when the post of Assistant Accounts Officer was created, but subsequently in a monthly statement of appointments (made without reference to the Public Service Commission) sent to the Commission through the Natural Resources Division, the Commission did not raise any objection in respect of either the appointment or the post. From this, the respondent No. 2 implied "that they not only accepted the promotion of Mr. Yousafzai as regular but also indirectly conceded (our) contention that the post of Assistant Accounts Officer should be treated to have been borne on the ordinary cadre of the Department on which recruitment could be made by promotion of Superinten--dents". Though the Natural Resources Division has not agreed with this assumption, yet no material has been relied upon to show that this view has not been accepted by the Public Service Commission or that it was not acted upon by the head of Department, i.e., respondent No. 2.
26. With regard to the technical question, whether the use of the words "officiate" and/or "until further orders" would, by itself, make the appointment temporary if the circumstances indicate otherwise, we cannot do any better than to rely again on the ruling of the Supreme Court in the case of Abdul Majid Sheikh already noticed above. In the judgment written by the learned Chief Justice, it was specifically noticed that though the appointment of Abdul Majid Sheikh was variously described as "on probation" and "thereafter terminable by giving 14 days notice"; and "temporary" and "until further orders; and that he did not receive any substantive appointment, yet "considera--petition should be given to the fact that lie had successfully undergone a period of probation-and thereafter had gained promotion". These observations and the conclusions thereon reached by his Lordship (already extensively quoted in paragraph No. 17 above) apply with full force to the present case.
27. When this aspect of the matter was high-lighted during the arguments, learned counsel for the respondents once again fell back on the observations made in some rulings of the Supreme Court before and after the decision in the case of Abdul Majid Sheikh. They have already been noticed above. It appeared to us as if the learned counsel found some difficulty in under--standing the true import of all these rulinge, With respect, it is pointed out that the observations made in the case of Qazi Syed Hikmat Hussain which were repeated and explained in the subsequent rulings, proceeded on a very important assumption that the officiating character of the appointment, at all relevant time, was in accordance with law including the rules applicable to the service or post. In other words, the power exercisable by the Government and/or the competent authority vis-a-vis an officiating appointee to terminate his service or to revert him to a lower post is concomitant and goes along with the very important pre-requisite that the condition of officiation was lawfully attached initially and was lawfully continued subsequently. As soon as it is to be found that the condition was either unlawful or was continued in an unlawful manner, this would directly adversely affect the said power. There fore, the lawful exercise of power is dependent upon the existence of a condition which is lawful. The question as to whether or not there is some such existing condition is, according to the Supreme Court view, justiciable. Depending upon the circumstances of each case, it will have to be determined whether or not such like condition was validly attached and continued with the post or appointment. The decision on this question cannot be left entirely to the discretion of the Government and/or the other competent authority. Thus whenever they will commit some mistake in this behalf and the matter is properly brought before the Courts, unless they are specifically barred by an existing enforceable law, they would decide upon the validity of the orders so passed. This is what their Lordships of the Supreme Court did in the cases of Abdul Majid Sheikh and Khushi Muhammad respectively). We have quoted the observations of their Lordships in the latter case in paragraph No. 19 above. We have also noted earlier that in at least one of the rulings cited by the learned counsel for the respondents, i.e. The case of Abdul Majid Sardar (PLD 1966 SC 725), their Lordships were pleased to discover from various items of material and even by application of the presumptions under sections 35 and 114, Evidence Act, as to what was the true character of the appointments dealt therein; though, it might be observed, the finding in that case was against the appointee. It was observed at page 729 of the report: "'That an omission in an instrument may be supplied by evidence aliundi is a well -- recognized rule of construction and there is no reason why it should not have been applied in the present case". Their Lordships then examined the record and came to the conclusion that "on the material placed before the High Court the conclusion was therefore inevitable that the respondent was temporarily holding the post in which he was reverted to his former post of a Tally Clerk". We are, therefore, in no doubt that it is clear from these rulings of the Supreme Court that the question about the conditions of service, as were the subject-matter before their Lordships and is also before us, is to be decided as any other question of fact on which depends the further decision as to whether or not certain power exists with the relevant authority. It is further clear from what has been said above that having come to the conclusion as to what is the true character of the appointment vis-a-vis the conditions including that of officiation, the Courts can give full effect to such a finding as was done in the case of Abdul Majid Sheikh. Looked at in this light and according to the above analysis, we do not agree with the learned counsel for the respondents, either that there is any difficulty in understanding the rulings of the Supreme Court, or that is so far as the circumstances of the present case are concerned they are of any help to the respondents.
28. Arguments were also addressed at the bar as to whether or not, technically speaking, the employment of the petitioner was temporary. We were referred to the Temporary Employment Rules 1965, promulgated by the President in exercise of powers conferred under Article 179 of the Constitution, vide Notification No. S. RO. 116 (K)/65, dated 6th February 1965, and published in Part of the Gazette of Pakistan dated 26:h February 1965.
"Temporary employment" and "temporary employee" have been defined in sub-rules (2) and (3) of rule 2 of these rules, as follows:- "(2) "temporary employment" means employment by the Government of a person in a civil capacity otherwise than-
(a) on a permanent basis, or
(aa) on a temporary basis-
(i) for an indefinite period, or
(ii) against a post continued from year to year or for successive periods unless a fresh order of appointment, embodying information to the effect that the employment shall continue to be subject to these rules, is issued to the incumbent of the pest each time the post is extended.
(b) as a probationer, or
(c) on probation, or
(d) on contract, or
(e) as a workman as defined in the Industrial Disputes Ordinance 1959, (LVJ of 1959), or (f ) on deputation from a Provincial Government; and
(3) "temporary employee" means a person who is in temporary employment."
Obviously, the expression "until further orders" would bring the case under sub-rule (2) (aa) (i) and it will have to be held it was not a "temporary appointment". In view of the admission made in reply to para. 13 of the petition and in Annexure `R/3' already noticed in Paragraph No. 25 above, it is not necessary to consider the application of clause (aa) (ii). Other clauses also are not relevant. These observations are only in the context of the technical objection as to the definition of "temporary employment" Otherwise relying on the dictum of their Lordships of the Supreme Court, we are of the view that it was not a temporary appointment and, in any case, when the impugned order was passed, at that time by no stretch of imagination it could be treated as temporary.
29. We have also posed a question to ourselves as was done by Kaikaus, J., in the case of Abdul Majid Sheikh, as to why the Government/competent authorities are filling some permanent posts in this manner. We have not found any answer except the one, to borrow the phrase used by his Lordship, that "the Government wants to retain a power of arbitrary termination of service so as to defeat the constitutional guarantee". The authorities, it appears, whenever want to retain a power of removal, reduction fn rank, etc., although not otherwise empowered to do so under a law or a rule having the force of law, attach or continue to apply some conditions which are not, or do not remain, strictly valid and constitutional as we have found in the present case. We, in respectful agreement and obedience to the dictum of their Lordships of the Supreme Court, cannot, therefore, permit the Government and/or other authorities to retain extra constitutional power of arbitrary termination of service so as to defeat the constitutional guarantees available to civil servants, by doing what is not permissible by law, and will not give effect to such conditions. With the above observations, we find no force in the second contention raised by the respondents counsel, either.
30. Having found no force in the second contention of the respondents counsel; and in view of the discussion on the questions involved in the first contention noted in paragraph No. 7 above; and our finding thereon the impugned order, dated 3rd July 1968 (Annexure `F') passed by the respondent No. 2, the effect of which is that the petitioner has been reduced in rank, is set aside as without lawful authority and consequently of no legal effect. There shall be no order as to costs.
S, Q.
…and 3 more citing cases