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Petitioner: JAFAR ALI AKHTAR YOUSAFZAI VS Respondent: ISLAMIC REPUBLIC OF PAKISTAN AND JUDGMENT
Court Name: Balochistan High Court Judge(s): Muhammad Afzal Zullah, Muhammad Fazle Ghani Khan Title:JAFAR ALI AKHTAR YOUSAFZAI vs ISLAMIC REPUBLIC OF PAKISTAN AND
JUDGMENT
Reported As: PLD 1970 Quetta 115 Result: Order accordingly Judgment JUDGMENT 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.
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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.
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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.
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(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
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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
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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
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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…
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