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Constitutional Petition No. 746 of 1962, decided on 3rd October 1963.

, Art. 181 (1)‑Government servant‑Termination of services by authority subordinate to appointing authority‑Violation of constitutional guarantee.

North‑West Frontier Province v. Suraj Narain Anand P L D 1949 P C 1 rel.

Muzaffar Hassan for Petitioner.

A. K. Brohi and Shah Jamil Alam for Respondents.

Date of hearing : 3rd October 1963.

---This is an application under Article 98 of the Constitution by Miss Aziz Begum Chowdhury. She was appointed by the Director General Health, Government of Pakistan to the Central Medical Services Class 11 on a temporary basis on 15‑6‑60. Under the terms of her appointment her services could be terminated at any time on a fortnight notice without assigning any reason. Her services were terminated by a notice dated the 29th June 1961, by the Director, Central Health Establishment and Stores, Karachi.

2. The only point that requires consideration in this petition was whether the Director, Central Health Establish ment and Stores, Government of Pakistan, could terminate the services of the petitioner. The contention is that he being subordinate to the Director General Health, Government of Pakistan, who appointed the petitioner, could not do so. In this connection reliance was placed on Article 181 of 1956 Constitution. The relevant provision of Article 181 (1) reads as under :‑

No person who is a member of a civil service of the Federation or of a Province, or of an All Pakistan service or holds a civil post in connection with the affairs of the Federation, or of a Province, shall be dismissed or removed from service, or reduced in rank, by an authority subordinate to that by which he was appointed.

Reliance has been placed on behalf of the petitioner on the above provision and it has been contended that the dismissal of the petitioner was in violation of the constitutional guarantee inas much as the respondent No. 1 is admittedly lower in rank that the Director General of Health, Government of Pakistan. On the other hand Mr. Alain the learned Advocate for the respondent contended that under the new scheme Director, Central Health Establishment and Store‑, is the appointing authority of Class 11 officers to which the petitioner belonged. It is submitted that from 1‑6‑61 the Ministry of Health, Labour and Social Welfare was reorganized. Under the reorganized scheme there are three offices, namely, (1) Health Division, (2) Directorate of Central Health Establishment and Stores, and (3) Campaign Directorate. The responsibility of the Health Division was confined strictly to the formulation of policy relating to medical facilities, public health, medical education and medical research. The Director of Central Health Establishment and Stores was made the Head of the Department of all subordinate offices and was given the powers of appointments, postings and disciplinary actions in respect of Class II Officers. It was contended on this basis that under the existing scheme the Director of Central Health Establishment and Stores is the proper authority to dismiss the petitioner ; the petitioner's services having been terminated by a letter dated 29‑6‑61. There is not much force in the contention raised by the learned Advocate for the respondents. It is not necessary to elaborate the point that the constitutional guarantee cannot be taken away by reorganizing the department so long as the Post of Director General of Heath, who appointed the petitioner, exists. In this connection we would only reproduce a para. from the judgment of their Lordships of the Privy Council in the case of North‑West Frontier Province v. Suraj Narain Anand ((1) P L D 1949 P C 1). In that case their Lordships have dealt with the provisions of section 240 of the Government of India Act, 1935. The point before their Lordships was whether the Sub‑Inspector who was appointed by the Inspector General of Police could be dismissed by the Deputy Inspector‑General of Police. While interpreting section 240 which is almost similar to the provisions of Article 181 Constitution, their Lordships made the following observations:

"The proper construction of this section has been fully dealt with in the judgment of this Board just delivered in The High Commissioner for India and The High Commissioner for Pakistan v. Lall A I R 1948 P C 121 to which reference may be made. In that case the question arose as to the effect of non compliance with the provisions of subsection (3) of section 240 and it was held that subsection (3) was a statutory term of service of the Crown, which qualified the provisions of sub section (1) of section 240, and was mandatory and not permissible. On the principles of this decision, and the decision in Rangacharl's case 64 I A 40 : A I R 1937 P C 27 it is equally clear that subsection (2) of section 240, though it obviously does not apply in the case of dismissal by the Crown itself, is a statutory term of the service of the Crown, and is mandatory and not permissive. It follows that the dismissal of the respondent by an authority subordinate to that by which he was appointed would be unlawful and inoperative under that section."

The circumstances of the present petition was similar to the one which was before their Lordships of the Privy Council. In the present case also the petitioner's services have been terminated by an officer who is admittedly of lower rank than the Director General who appointed the petitioner. In this view of the matter we would hold that the notice terminating the services of the petitioner is in violation of the constitutional guarantee and, therefore, inoperative and unlawful. It is open to the Director General to terminate the services of the petitioner by giving proper notice in terms of the appointing letter dated 15‑6‑60. In the circumstances of this case we make no order as to costs.

S. Q./K. B. A.

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