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Writ Petition No. 876 of 1962, decided on 6th February 1963.
Reversion to substantive appointment from officiating post‑Not reduction in rank.
Authority competent to frame rules‑Cannot itself act in contravention of rules until altered or amended.
Non- compliance with provisions of S. R. 6.2‑Refusal by competent authority to approve recommendation made by Selection Board would be justified‑Approval, however, by competent authority without having any objection about non‑compliance of S. R. 6.2 Approved list would be legal.
Panel for promotion to Selection grade approved by competent authority (Deputy General Manager) General Manager not competent to modify it by removing person's name from it.
-- Rules governing promotion of railway servants in service of Pakistan‑Terms and conditions of service of such emyloyees --Grievance of employees in relation to such terms and conditions--- Cannot be remedied under Art. 98 (2).
Serajul Huq for Petitioner.
Hamidul Huq Chowdhury with Syed A. B. Mahmud Hossain G. P. and Md. Jani Alam, A. G. P. for Respondents.
‑This petition was heard along with Writ Peti tion No. 273 of 1962 as the point involved is identically the same in both the petitions, and the judgment pronounced in this writ petition will form part of the judgment in Writ Petition No. 273 of 1962.
2. The petitioner, Kazi Khalilur Rahman is an employee of the Pakistan Eastern Railway and he entered the railway service in the year 1942 in what was then known as the Bengal and Assam Railway, as a clerk in the ABC' grade. He was subsequently promoted to grade D' in the Personnel Branch of the General Manager's office in January 1946. Thereafter he was promoted to officiate in grade 'E' in a substantive vacancy on the 15th of August 1947. He has been officiating in the said grade E' on various occasions since 1947 and has been continuing in the said officiating appointment for more than three years. While he was officiating in the said grade E', he had been regularly receiving increments in that grade. The post of a clerk in grade E' in what is known as a "selection post" and appointment to such posts is made on the recommendation of Selection Board.
3. Such a Selection Board held tests for promotion to posts in grade E' on the 24th of December 1956, and then again on the 28th/29th of January 1957, under the Supplementary Rules govern ing promotion of subordinate staff. These rules are usually referred to as "S. R." as framed by the General Manager (Res pondent No. 1) under the powers conferred upon him in accordance with the rules embodied in the Pakistan Railway Establishment Code. As a result of the aforesaid tests, the said Selection Board prepared a panel of 18 successful candidates for promotion to E' grade posts and a list of the names of such successful candidates, in order of merit, was forwarded by the said Board to the Deputy General Manager (Personnel) (Respondent No. 2), who, being empowered as "competent authority" to do so, duly approved the same, the petitioner's position in the said list being 16th.
4. On the 25th of February 1957, the said General‑Manager (respondent No. 1), by his Order No. 447‑E/2/1/P‑III‑(Q) of that date, ordered promotion, reversion and posting of a number of persons in the said grade E' posts and the first eleven persons, whose names appeared in the approved panel, were promoted by the General Manager (Respondent No. 1). The petitioner was, however, reverted to grade D'. Subsequently the said General Manager by his order, being Order No. 513E/1/48/P‑II (Q), dated the 12th of August 1957, published and notified a panel of nine persons for promotion to the said grade "E" posts and directed that the aforesaid nine names should be kept in the panel for such promotion. The said nine names happened to be the names mentioned seriatim, in order of merit, in the panel recommended by the said Selection Board and approved by the Deputy General Manager who is the "competent authority" for that purpose.
5. The petitioner felt himself aggrieved by the said two orders, namely Orders No. 447/E/2/1/P‑III (Q), dated the 25th of February 1957, and No. 513E/1/48/P‑III‑ (Q) dated the 12th of August 1947, inasmuch as the said orders, in fact and in substance, amounted to a notification of the panel approved by the said Deputy General Manager on the recommendation of the Selection Board. It has been submitted on behalf of the petitioner that the aforesaid panel ordered by the General Manager postulates the exclusion of the names of the rest of the nine persons out of the eighteen persons placed on an approved panel, as stated above. The petitioner thereupon made several representations against such exclusion of names and preferred appeals to various authorities in the railway administration.
6. Finally, by a letter, dated the 18th of June 1962, the petitioner was apprised of the fact that his representations were rejected and he was further told that no further representation made by him would be entertained by the railway administration.
7. Thereupon the petitioner moved this Court and obtained the present Rule nisi calling upon the respondents to show cause why the impugned orders of the General Manager being Orders Nos. 447E/2/ 1 /P‑III (Q), dated the 25th of February 1957, and 513E/1 /4 8/P‑II (Q), dated the 12th of August 1957, should not be declared to be without lawful authority and the respondents were further asked to show cause why they should not be directed to cancel, withdraw or rescind the aforesaid orders. The respondents were also asked to show cause why they should not be directed to restore the name of the petitioner on the original panel approved by the Deputy General Manager for promotion to grade E' posts.
8. On behalf of the respondents an affidavit‑in‑opposition has been filed in which the petitioner's averments as to his service in the Railways, in the manner stated by him, have not been denied. It has also not been denied that the Selection Board mentioned in the petition prepared a panel of eighteen successful candidates, placing them in order of merit for promotion to grade E' posts as and when vacancies occurred in that grade. It has further not been denied that the Deputy General Manager is the "competent authority" to give such approval and that he, in fact, did approve the said panel of names. It has been stated that the Deputy General Manager erroneously gave such approval. This might be the view of the General Manager. The fact, however, remains that such approval was given by the said Deputy General Manager who was competent to give such approval. The main grievance of the respondents, as stated in the affidavit‑in opposition, seems to be that the said Selection Board prepared a panel of eighteen names in disregard to S. R. 6.2. On represen tations of persons, whose names did not appear in the said approved panel, the General Manager (respondent No. 1) took notice of this breach of S. R. 6.2 and set about to rectify the same, with the result that he finally ordered a panel of nine approved names out of the eighteen that were originally included in the panel prepared by the said Selection Board and approved by the Deputy General Manager. It is also claimed that the General Manager has a right to entertain appeals from railway servants and, in coming to a decision in respect of such appeals, he could pass any order which he thought fit and proper.
9. At the hearing of this Rule the petitioner's grievance that he was reduced in rank without his being given any hearing could not be substantiated. Admittedly, the petitioner was officiating in grade E' and that appointment in grade 'E' was not his substantive rank. It is well‑settled that a reversion to a substantive appoint ment from any officiating post, which a person occupies, would A not amount to reduction in rank. We need not dilate upon this point and it is sufficient to say that no such case could be made out by the petitioner. The petitioner could not, therefore, press for any relief except the one which we proceed to consider hereunder.
10. It has been argued that the order of the General Manager, by which he had prepared a panel of nine names out of the eighteen names which appeared in the panel recommended by the Selection Board approved by the Deputy General Manager, was against the supplementary rules with regard to the terms and conditions of the service of non‑gazetted posts in the railway service. The contention is that the General Manager is bound to follow the rules governing promotion of subordinate staff, as embodied in the Pakistan Railway Establishment Code, Vol. I, reprinted in 1952, at the direction of the Government of Pakistan, fn Appendix IIA, as well as in the supplementary rules (quoted as S. R.) which the General Manager is empowered to frame. With regard to supplementary rules, it was further contended that the General Manager was bound by them as long as such rules continued to remain in force.
11. In this context, our attention was drawn to rule 6 in Appendix IIA of the Railway Establishment Code under which appointments in grade E' posts as mentioned above are declared as "selected posts". Clause (c) of that rule reads thus :
"(c) Promotion to selection posts shall be made by the com petent authority in accordance with the recommendations of a Selection Board which has complied with the procedure detailed in rules 7, 8 and 9 below. If in any case, such authority is unable to accept the recommendation, a reference shall be made to the General Manager whose decision shall be final."
It was further submitted that the Selection Board mentioned above was constituted under rules 7 and 8 in Appendix IIA. The recom mendations of a panel of eighteen persons, as stated above, was made in accordance with the procedure laid down in rule 9 in that Appendix. We were further referred to the supplementary rules which govern such promotion. S. R. 7.1 reads as follows
"The recommendations of the Selection Board will be consi dered by the competent authority who shall decide whether to approve of the recommendations of the Selection Committee or not. In the latter case the reasons for non‑approval will be recorded by the competent authority."
S. R. 7.2 runs thus
"The competent authority should indicate the number requir ed to be placed in the panel of approved candidates. It is for the competent authority to decide how many persons should be borne on the approved list in a particular grade to meet the requirements of leave, retirement, LPR. etc. but attempt should be made to ensure that the panel does not take more than two years to exhaust."
S. R. 7.3 is to the following effect
"The competent authority referred to in this rule should be Heads of Departments for the staff under their control."
(In this case the Deputy General Manager, i.e. Respondent No. 2).
Our attention was next drawn to the provision of rule 6 (c) in Appendix IIA of the Railway Establishment Code, Vol. I (which we have already quoted), which requires that promotion to selec tion post shall be made by the competent authority in accordance with the recommendation of the Selection Board.
12. With reference to the aforesaid rules, the petitioner's contention is that promotions (to grade E' posts) must be made from the panel of names recommended by the Selection Board and approved by the "competent authority", namely, the Deputy General Manager (Respondent No. 2). Once such approval is given to the recommendation of the Selection Board, there can be no modification or reduction to the approved panel so prepared. A deviation can be made with reference to S. R. 9.1, which is irrelevant for the purposes of this case.
13. There can be no manner of doubt that the petitioner has rightly contended that the order passed by the General Manager, namely, Order No. 513E/1/48/P‑II (Q), dated the 12th of August 1957, by which a panel of nine names was prepared out of the original panel of eighteen as approved by the Deputy General Manager (Respondent No. 2) on the recommendation of the Selec tion Board, amounts to a modification of the original panel of eighteen persons and exclusion of the names of the rest of the nine persons whose names were incorporated in the originally approved panel.
14. The question, which has been posed on behalf of the petitioner is, can the General Manager modify or reduce the nume rical strength of the panel of names recommended by the Selection Board and approved by the competent authority The answer is, as we shall see hereafter, that he cannot do so.
15. The Deputy General Manager who is admittedly the competent authority in this respect, having approved a panel recommended by the Selection Board, the General Manager could,, modify it only if empowered by rules. In attempting to make any such modification, in disposing of appeals preferred to him by other persons, he cannot by‑‑pass the rules already framed. In, his connection, reference may be made to S. R. 9.1 which reads thus
"Persons selected and placed on the panel for promotion to a selection grade or post will remain on the panel until they are either‑
(a) confirmed in the selection post, or
(b) found unfit for holding the selection post after a trial in it, or
(c) reported on adversely while working in their existing grades and, therefore, considered unfit for promotion to the selection grade or post,"
16. It is thus clear that the aforesaid S. R. 9.1 provides fur the only manner by which a person's name can be taken out of the panel which has been once approved on the recommendation of the Selection Board. It is conceded that the impugned order passed by the General Manager was not passed with reference to S. R. 9.1.
17. Mr. Hamidul Huq Choudhury could not show us any specific rule which authorises the General Manager (Respondent No. 1) to exclude the names of persons from a panel which has been recommended by a Selection Board and approved by the competent authority. He has relied on the general power of administrative supervision exercised by respondent No. 1, more or less, in accordance with the maxim that King can do no wrong. He has argued that the General Manager could frame rules and amend or repeal them as he thought fit and proper. This is true. But until the rules are amended or modified, he is himself bound by the said rules and cannot act in breach thereof.
18. The General Manager is not competent to violate any existing rule, on the ground of administrative inconvenience, even if he has been authorised to frame such a rule of procedure.
19. It has been next contended that the Selection Board dis regarded the provisions of S. R. 6.2 which reads thus
"A minimum of 4 candidates should be considered for selec tion for each man required on the panel."
In this connection, our attention was drawn to the fact that only thirty‑six persons were asked to appear before the Selection Board and, in fact, thirty of them appeared in the test. The con tention, therefore, is, that, in order to prepare a panel of eighteen names, a minimum of 72 persons should have been called to appear in the test held by the said Selection Board, in accordance with the aforesaid S. R. 6.2. This is so. S. R. 6.2 is a recommen datory provision requiring a particular course to be taken in making selections such as the one with which we are concerned in this case. It is also obvious that any disregard to the said S. R. 6.2 would be an irregularity of a kind which would justify the competent authority in refusing to approve of the recommen dation thus made by the Selection Board on the ground that the provisions of S. R. 6.2 have not been complied with. If, however, the competent authority approves of the list without raising any, such objection regarding non‑compliance of S. R. 6.2, the approv ed list will have all the force and legal character of an approved list as mentioned in the relevant rules. After such an approval it cannot be said that the approved list is a nullity because of an irregularity committed by the Selection Board by non‑observance of the provisions of S. R. 6.2. Mr. Hamidul Huq Choudhury could not contend that the approved list was a nullity in the eye of law. His whole argument was based on the contention that the General Manager, being the over‑all head of the railway establishment, could make an administrative order in modification of the approved list, we do not think that this contention is ten able. The General Manager is not empowered to over‑ride rules which govern appointments and promotions to posts in railway service unless he is specifically empowered by some rule or provi sion of law to that effect. He has no such arbitrary authority, even on ground of administrative convenience, unless so empowered in express terms as stated above. Rules are intended to be followed and not to be broken whimsically and arbitrarily. We have already seen that the General Manager has no power to act against the express requirements of the rules in the Pakistan Railway Establishment Code and the Supplementary Rules as long as such rules remain in force.
20. Mr. Hamidul Huq Choudhury has impeached the afore said approved panel on the ground that the said panel of names as approved by the Deputy General Manager was not notified in pursuance of a circular given by the General Manager, dated the 1st of August 1951, which runs thus
"Sub‑Result of Selection held for higher grade post.
The system of communicating the result of Selection Board to the successful candidates is not in practice on this Railway with the result that those staff who are placed on the approved list keep making frantic enquiries from all possible sources to gather this information. In doing this, they waste their own time as well place their colleagues who maintain the approved lists in awkward position.
It has, therefore, been decided to notify the list of approved candidates within one week of their being placed on approved list.
This procedure may be followed henceforth.
(Sd.) Jameel Ahmad,
for General Manager."
21. Upon the aforesaid circular it was sought to be argued that no right was conferred upon the petitioner by the approval of the Deputy General Manager (Respondent No. 2) of a panel of eighteen persons as recommended by the Selection Board. Obvi ously, this argument presupposes that, until there is a notification in accordance with the aforesaid circular, the approved list has no legal validity. This argument is also wholly untenable. It would be seen that the said notification is merely an administra tive circular given by the General Manager and is not in accord ance with any rules governing the terms and conditions of service of a railway servant. As mentioned above, a right has been conferred upon the petitioner by virtue of the approval given by the competent authority to the panel as recommended by the Selection Board, and its validity was not dependent upon a noti fication in accordance with the administrative direction given by way of a circular to all heads of departments.
22. It will be seen that the circular itself takes cognisance of the prevailing practice of leaving successful candidates to find out for themselves the result of the selection test. The practice became notorious and the General Manager took notice of it. In any case, this has no effect upon the legal efficacy of the approved panel of recommended names by the Selection Board. 23. The General Manager could have called upon the Deputy General Manager (respondent No. 2) to explain the approval he had given to the panel. But, so far as the petitioner is concerned, his name appeared on a list recommended by the Selection Board as approved by the competent authority, namely, the said Deputy General Manager. In respect of the petitioner the matter was decided and concluded, conferring upon him a definite right, namely, a right to be considered for promotion to grade B' post. It is a right which could only take effect in future; nevertheless, it is a right and a very valuable right. Even from a purely equitable point of view, is it proper to wipe out a right which has already come into existence. Mr. Hamidul Huq Chou dhury has argued that there was some administrative justification for the action taken by the General Manager. However, we are not concerned with the ethics of the railway administration.
24. The action taken by the General Manager (respondent No. 1) in excluding the name of the petitioner from a panel approved by the said competent authority on the recommen dation of the Selection Board is not in accordance with law. The rules specified above must be treated as laws. There can b p no doubt that the order by which a panel of nine names was prepared at the instance of the General Manager (respondent No. 1), amounts to exclusion of the name of the petitioner from the original panel which contained eighteen names in order of merit.
25. In these circumstances we would have been inclined to give the petitioner a declaration to the effect that the aforesaid action of the respondent No. 1 is not in accordance with law, but for a difficulty which the Constitution has placed in the way of the petitioner. The petitioner would have been entitled to obtain such a declaration under the provision of clause (2) of Article 98 of the Constitution. But clause (3) (b) of that Article imposes an insurmountable difficulty in his way. The said clause (3) (b) runs as follows
"(3) An order shall not be made under clause (2) of this Article‑
"(b) on application made by or in relation to any other person in the service of Pakistan in, respect of his terms and conditions of service, except a term or condition of. service. that is specified in this Constitution."
26. Mr. Ishtiaq Ahmed, who appeared for the petitioner in Writ Petition No. 273 of 1962, has argued that the present petition would not amount to an application made by a person in the service of Pakistan in respect of his terms and conditions of service. Obviously, there is no substance in this argument. The rules which govern the promotion of railway servants in the service of Pakistan are undoubtedly terms and conditions of their service. The various rules in the Pakistan Establishment Code as well as(, those contained in the Supplementary Rules. are rules, which have been framed by virtue of the powers conferred upon the relevant authorities to frame rules in, respect of terms and conditions of service of railway servants. It cannot, therefore, be contended that the grievances of the petitioner, as mentioned above, are not in relation to the terms and conditions of the service of the petitioner. We, therefore, hold that clause (3) (b) of Article 98 of the Constitution bars the remedy of the petitioner under clause (2) of the said Article.
27. Mr. Hamidul Huq Choudhury has stated in this Court that he will recommend to the relevant authority for a reconsidera tion of the grievances of the petitioner.
The result, therefore, is, that for reasons stated above, the Rule is discharged without any order as to costs.
‑I agree.
S. B./K. s. A.
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