MAHMOODUL HASAN Versus ISLAMIC REPUBLIC OF PAKISTAN
The petitioner was an Assistant in the Natural Resources Division of the Ministry of Industries Government of Pakistan. He was appointed as temporary Economic Investigator with effect from 16‑9‑1961 and on 17‑3‑1965, was appointed on a temporary basis to officiate as Research Officer Class I, with effect from the forenoon of 1st of December 1964 until further orders. The confirmation of the petitioner in his parent department, as an Assistant took place on 20‑7‑1965.
2. By means of an order, dated 30‑10‑1970, the petitioner has been reverted to his parent department where, as already indicated, he stands confirmed as an Assistant. The petitioner has come up in writ petition against the aforesaid reversion and calling it as a reduction in rank has taken exception to the same.
3. The first point argued by the learned counsel for the petitioner was that the process employed in this case was of a reduction in rank as contemplated in Article 177 (sic) of the late Constitution of 1962 and, therefore, could not have been brought about without Issuing a show‑cause notice to him in that respect. The contention has no force. It is well‑settled that reversion of a person from an officiating post to his parent department is not a reduction in rank‑See M. Ibrahim v. Government of Pakistan (P L D 1972 Lah. 60), Province of West Pakistan v. Bashi Ahrnad Qureshi (P L D 1959 S C (Pak.) 93), Pakistan v. Qazi Syed Hikmat Hussaln (P L D 1959 S C (Pak.) 107) and Pakistan v. Mehraj‑ud‑Din (P L D 1959 S C (Pak.) 147).
4. When confronted with this situation, learned counsel for the petitioner argued that the appointment of the petitioner as a Research Officer in an officiating capacity way illegal and despite the use of the word "officiating" he was for all intents and pur poses substantially appointed to that post. Reliance was placed on Jafar Ali Akhtar Yousafaal v. Islamic Republic of Pakistan and an other (P L D 1970 Quetta 115), for the proposition that a Court could always examine whether in the peculiar circumstances of a case the appointment of a person despite the use of the word "officiating" was in reality "officiating" or ought to have been shown as substantive or permanent. There can be no quarrel with this proposition and in appropriate cases such a scrutiny can be made by Courts of law. In the instant case, learned standing counsel for the Central Government has placed before me the Minutes of the file which was presented to the President for the purpose of making the appointment of the petitioner as a Research Officer. The actual summary which was put to the President reads as follows; ‑--
SUMMARY
Subject.‑Temporary appointment against the post of Research Officer in the Planning Cell.
The posts of Research Officers Class I (Junior Scale) in the Planning Cell of this Division fell vacant on the selection of their incumbents for higher appointments. Pending selection of suitable candidates for these posts, the C. P. S. C. have per mitted this Division to make ad hoc appointments on a temporary basis.
2. Appointment of the following two officers was approved by the President in these vacancies:
(1) Mr. S. M. Ayub Siddiqui, who was holding the post of Statistical Officer in the Industries Division.
(2) Mr. Mokhlesur Rehman Mian, who was holding a post of Research Officer Class 11 in the Ministry of Finance.
Mr. S. M. Ayub Siddiqui, in. the meanwhile, has pro ceeded for training in Italy for a period of six months.
3. The Departmental Promotion Committee of the Indus tries Division has recommended that Mr. Mahmoodul Hasan, at present working as Economic Investigator in the Planning Cell may be appointed to officiate as Research Officer until such time as. Mr. S. M. Ayub Siddiqui returns from abroad, or the C. P. S. C. nominates a suitable candidate, whichever is earlier. This arrangement has been proposed as the vacancy is for a short period. The particulars of Mr. Mahmudul Hasan are as follows :‑
(i) Age; ... 34 years.
(ii) Academic ... (1) M. A. (Geography), LL. B.
(2) Diploma in Management of
Small Industries from Graduate
School of Business Administra tion, Karachi.
(iii) Present Pay‑ Rs. 410.00 per month in the
Scale of Rs. 335‑25‑585.
4. Approval of the Minister/ President is solicited to the appointment of Mr. Mahmood‑ul‑Hassan as a temporary Research Officer in the Planning Cell of this Division. His Character Roll is placed below:‑
(Sd.) S.M. Yusuf,
Secretary, Industries and Natural Resources. 24‑2‑1965.
"P. S.‑To Minister for Industries and N. R. Principal Secretary to the President.
The President approved.
(Sd.) N. A. Faruqui, 3400.
Principal Secretary to the President.
Secretary Industries,
President's Sectt. (Public),
U/O No. D. 4549‑Pres/65, dated 15‑3‑1965."
5. In pursuance of the aforesaid approval of the President there was issued (Annexure 4) which is a copy of the Gazette of Pakistan, dated 2‑4‑1965. It reads as follows:‑
"Gazette of Pakistan, published by authority, Karachi,
Friday, April 2, 1965, page 90.
Rawalpindi, the 17th March 1965.
No. Admn./R/1(7)/64.‑Mr. Mahmoodul Hassan, Economic Investigator in the Planning Cell of this Division is appointed on a temporary basis to officiate as Research Officer (Class 1) in the same Cell with effect from the forenoon of December 1, 1964, until further orders."
6. Reading the above reproduced material together no room is left for doubt that in the circumstances explained therein the appointment of the petitioner was rightly made in an officiating capacity. The reasons given for making the officiating appoint ment were that the post in the very nature of things was for a short period inasmuch as, the real person selected for that post had to go outside Pakistan on certain scholarship awarded to him and in his absence some sort of arrangement was to be made by the Department for filling in the vacuum. These reasons were sufficient in their nature to make the appointment of the petitioner as officiating. Another thing to be noticed by that in the Gazette Notification the word "officiating" was specifically used but it appears that the petitioner took no steps to get that word deleted and in other words accepted It In its apparent tenor which even otherwise had the support of the relevant orders of the appropriate autho rities regarding his selection and appointment, on the relevant file.
7. At this stage, learned counsel for the petitioner placed reliance on Government of Pakistan Ministry of Industries and Natural Resources Office Order (Natural Resources Divi sion) letter No. 5(37)/67‑Admn., dated 8‑4‑1969, whereby the lien of the petitioner in his parent department was suspended with effect from 20‑7‑1965. He argued that the suspension of lien in the parent department was an indication of the fact that his appointment as a Research Officer was in a permanent capacity. For this purpose, he also referred to F. R. 14 (a) as contained in the Compilation of the Fundamental Rules and the Supplementary Rules made by the Governor- General including Orders etc., issued by the Central Govern ment Auditor‑General etc. (Volume 1, 1st Edition). This rule reads as follows:---
"F. R. 14.‑(a) The Governor‑General shall suspend the lien of a Government servant on a permanent post which he holds substantively if he is appointed in a substantive capacity‑
(1) to a tenure post, or
(2) to a permanent post outside the cadre on which he is borne, or
(3) provisionally, to a post on which another Government servant would hold a lien had his lien not been suspended under this rule.
(b) The Governor‑General may, at his option, suspend the lien of a Government servant on a permanent post which he holds substantively if he is deputed out of Pakistan or trans ferred to foreign service, or, in circumstances, not covered by clause (a) of this rule is transferred, whether in a substantive or officiating capacity, to a post in another cadre, and if in any of these cases there is reason to believe that he will remain absent from the post on which he holds a lien for a period of not less than three years.
(c) Notwithstanding anything contained in clause (a) or (b) of this rule, a Government servant's lien on a tenure post may in no circumstances be suspended. If he is appointed sub stantively to another permanent post, his lien on the tenure post must be terminated.
(d) If a Government servant's lien on a post is suspended under clause (a) or (b) of this rule, the post may be filled substantively and the Government servant appointed to hold it substantively shall acquire a lien on it, provided that the arrangements shall be reversed as soon as the suspended lien revives.
(e) A Government servant's lien which has been suspended under clause (a) of this rule shall revive as soon as he ceases to hold a lien on a post of the nature specified in sub‑clause (1), (2) or (3) of that clause.
(f) A Government servant's lien which has been suspended under clause (b) of this rule shall revive as soon as he ceases to be on deputation out of Pakistan or on foreign service or to hold a post in another cadre, provided that a suspended lien shall not revive because the Government servant takes leave if there is reason to believe that he will, on return from leave, continue to be on deputation out of Pakistan or on foreign service or to hold a post in another cadre and the total period of absence on duty will not fall short of three years or that he will hold substantively a post of the nature specified in sub‑clause (1), (2) or (3) of clause (a)."
If the above rule is read in its entirety, it will be evident that the case of the petitioner was covered with sub‑rule (6) of Fundamental Rule 14 and not sub‑rule (a). In sub‑rule (6) of F. R. 14, there exists a scope for suspending the lien of a person in the circumstances as existed in the present case.
8. The case had been adjourned on various dates, because the petitioner wanted to study it further. Today, i.e., 29th of June 1972, learned counsel has made an oral prayer that he may be allowed to withdraw the writ petition with permission to file afresh one because temporary nominees of the Ministerial Service Examinations 1952‑53 and purely temporary employees appointed on or before 31‑12‑1964 to different ministerial cadres in the Secretariat and its attached departments have according to the latest information of the petitioner, been exempted from the post‑entry Ministerial Services Examination to be conducted by the F. P. S. C. I have not understood as to how this fact has relevancy to the point involved in the present case, namely, whether the appointment of the petitioner was officiating or not. I have already held above that the petitioner was appoint ed to the post in hand merely in an officiating capacity and his reversion to his substantive post does not amount to a reduction in rank. The request to withdraw the writ petition, therefore, is not accepted. There have not been shown to me either any formal defects or any sufficient cause in that respect. The writ petition is dismissed leaving the parties to bear their own costs.
K. B. A. Petition dismissed.