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Petitioner: PROVINCE OF WEST PAKISTAN VS Respondent: MALIK MANZOOR HUSSAIN
P L D 1966 (W
P L D 1966 (W. P.) Lahore 1072
Before Anwarul Haq, J
PROVINCE OF WEST PAKISTAN---Appellant
versus
Malik MANZOOR HUSSAIN----Respondent
Regular Second Appeal No. 96 of 1965, decided on 17th July 1965.
Establishment of West Pakistan Act, 1955,
S .8 (3)-Powers of Governor to determine terms and conditions of service of officials of integrating units-Circumscribed by limitations contained in proviso (a) to S. 8(3)-Prospects of future promotion Cannot be regarded as part of terms and conditions of service guaranteed by proviso (a) to S. 8(3)-Proviso, however, cannot be construed so as to deprive official of any benefit which may have been conferred by Governor in exercise of powers given to him under subsection (3) itself-Government Notification dated 25-I1-55, paras. 4, 9, 10 & 11-Combined effect: subordinate ministerial establishment to be grouped either in regional or district cadres Status of office of Director of Public Instruction, Bahawalpur --Not that of a District office but of a Provincial office and now replaced by Regional Director of Education Lahore Region- Person, senior-most officer in office of Director of Public Instruction, Bahawalpur-Entitled, on integration, to be absorbed in ministerial staff' of Regional Directorate of Education Lahore and not in District or Divisional office which is subordinate establish ment-Absorption of such official in subordinate offices-Violative of relevant law and instructions under S. 8(3).
Government of West Pakistan v. Fida Muhammad Khan P L D 1960 S C 45; Government of West Pakistan v. Fateh Ullah Khan P L D 1960 S C 105 and Manzoor Ahmad and others v. Ch. Muhammad Ishaq and others P L D 1964 S C 17 ref.
Malik Muhammad Aslam for Appellant.
Kh. Muhammad Tufail for Respondent.
JUDGMENT
This second appeal is by the Government of West Pakistan and arises out of a suit filed by the respondent Malik Manzoor Hussain for a declaration that the seniority list published by the Department of Education showing his name in the integrated cadre of the subordinate offices ministerial establishment of Group Sub-Cadres `C' and `D', Lahore Region, was invalid and inoperative as against his rights as a pre-integration official of the Bahawalpur State. In this suit a prayer was also made for a mandatory injunction requiring the Province of West Pakistan to remove the plaintiff-respondent's name from the seniority list in question and to incorporate it in the seniority list of the Regional Directorate of Education in a parallel grade and scale. The suit was decreed by Sheikh Saeed Ahmad, Senior Civil Judge, Bahawalpur, only with regard to the prayer for declaration, and the mandatory injunction was refused. In appeal, the decree was upheld by the learned District Judge, Mr. Muhammad Ilyas, with a slight modification that instead of declaring that the plaintiff respondent was entitled to have his name removed from one list and incorporated in another list, the declaration should be to the effect that he was entitled to be integrated with the ministerial staff of the office of the Director of Public Instructions, Punjab, in accordance with the principles laid down in the Integration Circular dated the 25th of November 1955.
2. The facts may be briefly stated. At the time of the establish ment of West Pakistan on the 14th of October 1955 the respondent Malik Manzoor Hussain was serving as an Assistant Superintendent in the Office of the Director of Public Instructions. Bahawalpur and was drawing pay in the scale of Rs. 150-10-250/15-370. He was the senior most ministerial officer in that office. On Integration he was, however, appointed to the office of the Divisional Inspector of Schools at Bahawalpur on the same pay scale and in the seniority list published by the Department of Education in 1961, showing seniority of the subordinate officials as it stood on the 1st of July 1959, his name was shown not in the regional list but in the list relating to the subordinate offices ministerial establishment. Even in this list he was 'not shown as forming part of the regular cadre for the simple reason that he was drawing pay in a scale which was much above the highest scale admissible in the subordinate offices, namely, Rs. 120-8-200/ 10-250, pertaining to the post of Head Clerk of the office of the Divisional Inspector. It was contended on behalf of the plaintiff that according to the Integration Circular issued on the 25th of November 1955 laying down principles on which the different cadres of the integrating units were to be integrated, he was entitled to be absorbed in the office of the Regional Director of Education, Lahore Region, which comprised the former Bahawalpur State. The reasons given for this claim were that he was serving in the office of the Director of Public Instructions, Bahawalpur, who was a Senior Head of the Department and also Secretary to the Government of Bahawalpur-and the corresponding office, on the abolition of the office of the D. P. I., Bahawalpur, was the office of the Director of Education, Lahore Region. It was further stated that as the plaintiff was holding the highest ministerial post, being in charge of the office of the Directorate, was eligible for promotion to the rank of Superintendent and Assistant Secretary in the Bahawalpur Secretariat. He contended that the newly created office of the Inspector of Schools in the Bahawalpur State, where he had been posted after Integration, was a lower office and therefore, not only had he been deprived of the chances of promotion but it also amounted to a reduction in rank. He maintained that he was entitled to be integrated with the post of Head Assistant in the office of the D. P. I. of the former Punjab or his successor, Director of Education, Lahore Region.
3. The suit was resisted by the Government of West Pakistan by asserting that the plaintiff was not holding a post equal to the rank and grade of the post of Head Assistant in the office of the former D. P. I., Punjab as that grade was Rs. 250-15-400 (subsequently revised to Rs. 325-20-525). It was also stated that the terms and conditions of service of the plaintiff---respondent had not been changed in any manner and that he had no further prospects of promotion in the office of the D. P. I. of the former Bahawalpur State. It was concluded that the plaintiff had, therefore, been rightly shown in the ministerial cadre of the subordinate office of the Education Department in accordance with the terms of the Integration Circular issued by the Chief Secretary to the Government of West Pakistan.
4. It is contended on behalf of the appellant that the chances of promotion are not part of the terms and conditions of service as guaranteed by section 8(3) of the Establishment of West Pakistan Act, 1955 (hereinafter referred to as the Act) and therefore, the respondent can have no legitimate grievance which could be enforced in a Court of law. It is submitted that his pay scale has been protected and he has also been described as Assistant Superintendent in the seniority list even though no such post ordinarily exists in the office of the Divisional or the District Inspector of Schools: finally, the point is made that the Director of Public Instructions of the former West Punjab was also a Secretary to the Provincial Government and the ministerial staff appointed in his office had the same pay scales as obtained .in the Civil Secretariat at Lahore and these scales were higher than those available to the ministerial establishment in the attached or subordinate offices and for this reason also the respondent, who was not serving in the Secretariat pay scale, could have no right to be integrated with the staff serving in the office of the former Director of Public Instructions, West Punjab.
5. The case is governed by section 8 of the Act. Sub section (3) of this section which is relevant in the present context is in the following terms:-
"Section 8(3):-All persons in the service of the Crown, serving in connection with the affairs of the specified territories and all persons holding civil posts under the Government of the State of Bahawalpur, or the State of Khairpur, or the Baluchistan State Union, shall, as from the appointed day, be deemed to be persons serving the Crown in connection with the affairs of the Province of West Pakistan on such terms and conditions as the Governor of the Province of West Pakistan may determine:
Provided that-
(a) such terms and conditions shall not be less favourable than the terms and conditions admissible to them immediately before the 10th day of August 1955 ; and
(b) notwithstanding the terms of his appointment in the specified territory, any such person may be required to serve in any post or capacity and in any part of West Pakistan."
6. It appears that the Circular of the 25th of November 1955 was issued by the Provincial Government in pursuance of the power given in the closing part of subsection (3), namely, that the Governor of the Province may determine the terms and conditions on which the officials of the integrating units would be required to serve in the 'new. Province of West Pakistan. Proviso (a) to this subsection, however, placed a limitation on the power of the Governor in this behalf to the effect that the terms and conditions laid down by the Governor shall not be less favourable than the terms and conditions admissible to the officials of the integrating units immediately before the 10th day of August 1955. In view of several pronouncements of their Lordships of the Supreme Court it is clear that the prospects of future promotion are not to be regarded as part of the terms and conditions of service guaranteed by proviso (a) to subsection (3) cited above (See Government of West Pakistan v. Fida Muhammad Khan (P L D 1960 S C 45), Government of West Pakistan v. Fateh Ullah Khan (P L D 1960 S C 105) and Manzoor Ahmad and others v. Ch. Muhammad Ishaa A and others (P L D 1964 S C 17). The plaintiff cannot, therefore, base his claim merely on the assertion that in the former Bahawalpur State he had chances of being promoted to the Civil Secretariat: It is also clear that as the plaintiff has been given his own scale of pay, it cannot be said that his terms and conditions have been unfavorably altered or that there has been any reduction in rank.
7. The matter, however, does not rest there. Proviso (a) to subsection (3) of section 8 of the Act contains a guarantee of the minimum terms and conditions which have to be given to persons serving in the integrating units before the establishment of West Pakistan, but this proviso cannot be construed, in my opinion, so as to deprive an official of any of the integrating units of the benefits which have been conferred on him by the Governor of West Pakistan in the exercise of the powers given) to him by subsection (3) itself. It is clear that the Circular issued by the Chief Secretary to the Government of West Pakistan on the 25th of November 1955 was in pursuance of the provisions contained in this subsection. A reference to the various provisions of this Circular leaves no doubt at all in my mind that the plaintiff--respondent was clearly to be integrated with the staff of the Regional Directorate of Education. It has already been stated that the Director of Public Instructions of the former Bahawalpur State was a Head of the Department in that State and he was also functioning as Secretary to the Government. This position is clearly contained in the Bahawalpur Gazette of the 22nd of December 1952. On the abolition of the office of the Director of Public Instructions, Bahawalpur, its place has been taken by the Regional Director of Education, Lahore Region, which controls, inter alia, the areas falling in the former Bahawalpur State. It is also clear that the office of the Director of Public Instructions, Bahawalpur, was not a District Office but a Provincial office. In paragraph 4 of the Circular referred to above it is clearly laid down that as regards the Subordinate Services the cadres were to be constituted on a District or Regional basis, the regions to correspond generally with the jurisdiction of the regional heads including the Commissioners. Again in paragraph 10 it was laid down that "the pre-unification personnel belonging to the Subordinate Services other than the Secretariat and Ministerial Services, who were recruited on a province-wide basis before the formation of the Government of West Pakistan, will also be grouped as indicated in the preceding paragraph". In the preceding paragraph, i.e., paragraph 9, the entire Province of West Pakistan was divided into groups and Group 'C' was shown as including the officers belonging to the former Punjab and Bahawalpur State immediately before the 14th of October 1955. In paragraph 11 it was laid down that "personnel of other Subordinate Services will not be grouped and will be absorbed in the district or regional cadres formed as indicated in paragraph 4 above". The combined effect of these paragraphs was that the subordinate ministerial establishments were to be l grouped either in regional or district cadres. The question is what was the appropriate cadre for the plaintiff respondent.
8. I have already stated that in view of the status of the office in which the plaintiff was serving and the fact that this office has been succeeded by the office of the Regional Director of Education, it is clear that the plaintiff had to be absorbed in the regional office and not in the district office which was clearly a subordinate establishment. However, the matter is further clarified by reference to paragraphs 14 and 16 of the Circular. Paragraph 14 deals with the question of seniority and the relevant portion thereof is as follows:-
"For the purposes of integration, the seniority of all pre-unification officers will be determined with reference to the date of continuous appointment, substantive or otherwise to the grade as defined in paragraph 16 below . . . . ."
Paragraph 16 lays down:
"For the purpose of the two preceding paragraphs, `GRADE' may be defined, broadly, as consisting of a number of posts of the same category in the same class of service carrying the same duties and responsibilities and in a common scale of pay or, in case of officers belonging to different integrating units, in comparable scales of pay."
9. It will be seen that while integrating the seniority of the officials of different units the considerations to be kept in view were that the posts were to be of the same category in the same class of service carrying the same duties and responsibilities and in a common or comparable scale of pay. It has already been stated that the highest pay scale admissible in the subordinate offices of the Education Department is that obtaining in the case of a Head Clerk and on the relevant date, i.e., the 13th of October 1955, the pay scale of this post was only Rs. 120-8-200/ 10-250, whereas the plaintiff-respondent was enjoying a pay scale of Rs. 150-10-250/15-370. It is clear, therefore, that in the subordinate offices of the district or the divisional level there was no corresponding post at all which could be given to the plaintiff-respondent. On the contrary, in the office of the former Director of Public Instructions Punjab and the present Regional Director of Education, the post of Assistant carried exactly the same scale of pay as was being enjoyed by the plaintiff respondent as Assistant Superintendent in the former Bahawalpur State.
10. Apart from the pay scale, it is clear that the status of the post occupied by the respondent as well as the nature of the duties performed by him as the highest ministerial officer in the office of the Director of Public Instructions of the former Bahawalpur State were of the same class and category as those obtaining in the office of the Director of Public Instructions, Punjab. The respondent was in charge of the entire office establishment in the office of the D. P. I., Bahawalpur and his duties were of a supervisory nature. On that basis he would appear to be equivalent to a Head Assistant in the office of the D. P. I., Lahore. It has been stated before me by the learned counsel for the respondent that some officials from other integrating units have been absorbed as Head Assistant although their own pay scale was much lower. However, it is not necessary for me to decide this point, because in the event of the failure of this appeal the matter has to be finally decided by the department in terms of the modified decree granted by the learned District Judge in appeal.
11. On the considerations mentioned above, it is clear that under the instructions of the Governor of West Pakistan a embodied in the Circular of the 25th of November 1955 the; respondent was entitled to be integrated with the officials of the appropriate equivalent grade in the regional office and by not giving him that benefit the authorities concerned have clearly violated the relevant law and instructions under which they had to act in terms of subsection (3) of section 8 of the Act.
12. Before I conclude, I may mention that the learned counsel for the appellant laid great stress on certain observations appearing in the case of Fida Muhammad Khan already referred to and submitted that in any event the respondent could not claim more than what has been given to him, namely, a post which carried the same pay scale and same designation. In the case of Fida Muhammad Khan the facts were .that he was a Superintendent in the Civil Secretariat of Sind and after Integration it was found possible to reduce the number of posts in various categories and Fida Muhammad Khan had become surplus to the requirements in the Secretariat of the new Provincial Government. He was, therefore provided with a post of Superintendent in the office of the Rehabilitation Commissioner, West Pakistan, a second class office and from which transfer to the Secretariat and consequently eligibility for advancement within the Secretariat were no longer open to him. His grievance, therefore, was that the terms and conditions of his service had thus become less favourable. While holding that by the use of the words `admissible to him immediately before the prescribed date in subsection (3) of section 8 of the Act the Legislature made it clear that the terms and conditions to which they were referring were to be understood in a restricted sense, their Lordships further observed that when transferring respondent Fida Muhammad Khan to a subordinate office the Provincial Government provided him with the same salary etc., as he was drawing in the capacity of officiating Superintendent in the Sind Secretariat and they could not be required to do more. It was submitted by Malik Muhammad Aslam that from this dictum of their Lordships of the Supreme Court it became clear that no relief could be given to the respondent in the present case.
13. From the facts of Fida Muhammad. Khan's case given above it would be clear that in that case their Lordships were dealing with a different situation altogether. The. official concerned had been declared surplus to the requirements of the Civil Secretariat in which he would normally have a right to be absorbed and therefore, the question was about the manner in which he had to be treated as a surplus official. Their Lordships observed that in such a situation the Provincial Government could be required to do no more than to provide Fida Muhammad Khan with a post on the same pay. They did not lay it down that Fida Muhammad Khan was not eligible to be absorbed in the new Provincial Civil Secretariat. The question in the instant case is simply about the cadre in which the respondent has to be absorbed, namely, whether it has to be a regional cadre or the district or the divisional cadre at a subordinate level. If the Provincial Government had made a declaration that the respondent had become surplus to the requirements of the integrated cadre, the position might have been different and the dictum of the Supreme Court in Fida Muhammad Khan's case might have been attracted with full force. This is, however, not the position in this case. What the Provincial Government has done is simply to deny the plaintiff respondent the rights which have accrued to him under the terms and conditions granted by the Governor to persons serving, in the integrating units. The present case is, therefore, clearly distinguishable and there is no question here of holding that the respondent has no right to any relief in terms of the Integration Circular issued by the Government itself.
14. For the reasons given above, I agree with the findings recorded in this case by the learned lower appellate Court. , The appeal is, therefore, dismissed with costs.
K. B. A.
Appeal dismissed.