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Civil Appeal No. 35 of 1963, decided on 2nd November 1965

(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 16th April 1959, in Writ Petition No. 450 of 1958.)

Art. 181--Specialist's post mentioned in Cadre of P. H. S. Class I‑Appointment of r' Specialists, held to be in cadre of such service.

S. 8(3 proviso (b)‑Specialists appointment made after coming into force of Act‑Proviso (b) inapplicable though couched in "wide terms"‑High Court's order setting aside, by mandamus, Government order of transfer of such appointee, from one station to another, without his consent, upheld by Supreme Court, in circumstances of case (per Kaikaus, J., S. A. Rahman, Fazle Akbar, Hamoodur Rahman, JJ. agreeing; Cornelius, C. J preferring to look at matter as one falling within regulation of an established service, rather than as a case of "special contract"‑ "Instructions" issued by Government in connection with post, not less binding upon Governments, than if such instructions were incorporated in Rules of service)‑[Post of Medical Superintendent, Mental Hospital, Lahore].

)

‑The

proviso (b) to section 8 (3), Establish ment of West Pakistan Act, 1955 applies only to a post which was being held "on the appointed day" and it is only the conditions of appointment in the "specified territory" that cannot be a bar to the transfer of a civil servant: This proviso will have no application to an appointment made after the appointed day when the West Pakistan Province had come into existence nor has the proviso any force in doing away with the terms and conditions which were operative not in the "specified territory", but in the Province of West Pakistan.

As a holder of a post which came into existence after the appointed day the appointee was not affected by the proviso under consideration.

. preferred to look at the matter in a slightly different light, that ;s to say, rather as one falling within the regulation of an established, service, than as a case of a special contract.

In his Lordship's view, the effect of the letter of the 30th July 1956, which related to all "professors and other specialists recruited for particular institutions" coupled with the action taken thereunder, is no less binding upon the Government than if these matters had been incorporated in the Rules of the particular Service. The absence of formal embodiment in the shape of a rule and of publication in the Government Gazette does not operate to render these instructions any the less obligatory upon the Government.

Pakistan v. Sheikh Abdul Hamid P L D 1961 S C 105 ref.

M. A. Zullah Advocate Supreme Court instructed by Ijaz Ali Attorney for Appellants.

Respondent in person.

Dates of hearing: 4th, 5th May and 12th November 1964.

.‑This ark, appeal by the Government of West Pakistan, and the Director of Health Services, West Pakistan against an order of the High Court of West Pakistan holding that Dr. A. A. Aziz respondent was not liable to be transferred from the post of Medical Superintendent, Mental Hospital, Lahore.

The facts are simple except that they are to some extent complicated by the abolition and creation of posts. In 1954 the Punjab and N.W. F. P. Joint Public Service Commission invited applications for appointment to the post of Medical Superintendent, Punjab Mental Hospital, Lahore. This post, in accordance with the orders of the Punjab Government dated the 15th August 1949, was a post in the Provincial Health Service, Class I, though it was at the same time a specialist post as will appear from Chapter 1, section 1 of the Punjab Medical Manual (2nd Reprint Edition). The respondent who was at that time holding the post of Medical Superintendent, Frontier Mental Hospital, Peshawar, was one of the persons who applied for appointment to this post. Before the Punjab and N.‑W. F. P. Joint Public Service Commission could make any recommenda tions for appointment the post was abolished by an order of the Provincial Government of the 12th March 1955, and in its place the following two posts were created:‑

(i) Superintendent (incharge of administration work) in P. H. S. Class I with a special pay of Rs. 150 P. M.

(ii) Medical Officer‑in‑charge and Associate Professor of Psychiatry in P. H. S. Class I with a special pay of Rs. 100

P. M.

This change was to take effect from the date when the incumbent of the post of Medical Officer‑in‑charge and Associate Professor of Psychiatry took charge of that post. On the 7th April 1955, the Governor of the Punjab in consultation with the Punjab and N.‑W. F. P. Joint Public Service Commission passed the following order with respect to the appointment of the respondent:

"The Governor of the Punjab in consultation with the Punjab and N‑. W. F. P. Joint Public Service Commission is pleased to appoint Dr. A. A. Aziz (son of Mr. Abdur Rahim) as Medical Officer‑in‑charge and Associate Professor of Psychiatry, Punjab Mental Hospital, Lahore, in, the P. H. S. Class I, the scale of pay of which is Rs. 600‑40‑920/40‑1,000‑25‑1,150 P. M. plus a special pay of Rs. 100‑(One hundred) P. M. with effect from the date he assumes charge of the post, subject to usual medical examination. He will be on probation for a period of two years. The actual pay of Dr. A. A. Aziz in P. H. S. Class I scale of pay will be fixed by Government in accordance with the pay he is at present drawing at Peshawar. The last pay certificate of Dr. A. A. Aziz may be forwarded to Government for this purpose in due course." The respondent took charge and continued to act as Medical officer‑in‑charge and Associate Professor of Psychiatry, Mental Hospital, till the 9th of November 1956, when on a representation made by the Director of Health services to the effect that the separation of administrative and clinical work had proved a failure the two new posts created on 12th March 1955, were abolished and the old post of Medical Superintendent was restored it should be observed here that the Medical Superintendent referred to in the Punjab Government's Order of 1949 was incharge of administrative work also though it was a special post in the 12th March 1955, when the post was abolished the Superintendent (not Medical Superintendent) had been put incharge of administrative work, while clinical work and the teaching was to be done by the holder of the post to which the Respondent had been appointed on 7th April 1955. On the 9th of November 1956, the two posts created on 12th March 1955, were abolished and the following two posts were created:

(i) Medical Superintendent, Mental Hospital, in W. P. H. S. Class I with a special pay of Rs. 100.

(ii) Deputy Medical Superintendent in P. H. S. Class II.

The "Medical Superintendent" thus created was to be in charge of administrative work too. It may further be stated here that on the 24th May 1960, again the arrangements were altered by the West Pakistan Government and the Medical Superintendent was put in charge of clinical work alone and in place of Deputy Medical Superintendent the post of Administrative Officer was created who was to be put in charge of the general administration of the hospital. However, this order is not directly relevant for the purpose of the present appeal because the orders which were the subject‑matter of the writ petition out of which this appeal arises were passed in May 1958. On the 23rd May 1958, the Director, Health Services, issued an order transferring the respondent to Hyderabad as Medical Superintendent, Sir C. J. Mental Hospital, Hyderabad. The respondent was ordered to hand over charge to the Deputy Medical Superintendent and proceed to Hyderabad. Three days later, however, that is, the 26th May 1958, another order was issued by the Director, Health Services, West Pakistan, in modification of the previous order appointing Dr. A. A. Malik as Medical Superintendent of the Mental Hospital, Lahore, and directing that the respondent should hand over charge to him immediately and await further orders. It is these two orders which were made the subject‑matter of the writ petition out of which this appeal arises. The respondent claimed in the writ petition that he had been appointed to a specified post and that he could not legally be transferred from that post at all. With respect to the reference to P. H. S. Class I in the order of his appointment he said that this was intended only to fix his grade. The respondent further stated in the writ petition that after the establishment of West Pakistan he had been asked by a letter dated the Ist August 1956, from the Director of Health Services as to whether he would like to be borne on the provincial list for the purpose of promotion and transfer or whether he would like to stick to his present post foregoing the right of promotion. The respondent had in the first instance answered this letter by saying that he would stick to the "place of (his) present posting" and would forego the rights of promotion. On a reconsideration, however; he had said that he was appointed and recruited to the staff of the King Edward Medical College, Lahore, and would prefer to stick to it, but so far as promotions elsewhere are concerned he would decide the matter when a promotion was offered. This letter had been written to the respondent by the Director, Health Services, on account of a decision by the West Pakistan Government dated the 30th July 1956, wherein a conclusion had been reached that legally professors and other specialists were to be governed by the terms of their appointments whether the post was temporary or permanent and whether the officer had been confirmed or not. The respondent contended in the writ petition that the order of the Government and the letter of Director, Health Services, accepted that the respondent could not be transferred from this post and that having granted an option for sticking to that post the Government could not withdraw the offer after it had been accepted.

After the writ petition had been filed the Government of West Pakistan passed an order suspending the respondent from service. To challenge that order the respondent filed another writ petition. Both petitions were heard together, but ultimately it appeared to the High Court that almost all the reliefs which were asked for in the second writ petition were being granted to the petitioner by the judgment in the first writ petition and the second writ petition was dismissed as having become infructuous.

The respondents to the writ petitions were the Director, Health Services, West Pakistan, and the Government of West Pakistan. No written statement was filed by either of the two respondents in the first writ petition though it was contended that the order of transfer of the petitioner was lawful and within the power of the Government. A written statement was filed in the second writ petition wherein too the same contention was raised. The learned Judges of the High Court came to the conclusion that the respondent was appointed to a specific post. In fact counsel appearing for the Government and the Director, Health Services, conceded "that the petitioner was appointed to a specific post and that without his consent he could not be transferred to any other post in the Province". In the present appeal there is no contention that the statement in the judgment of the High Court as to this concession having been made is not correct and therefore there is no doubt that a concession was made. It was, however, contended before the High Court on behalf of the Government and the Director of Health Services that in spite of the appointment of respondent to a specific post he could be transferred on account of clause (b) of the proviso to subsection (3) of section 8 of the Establishment of West Pakistan Act. The learned Judges of the High Court came to the conclusion that this provision did grant a wide power to the Government with respect to transfer of civil servants, but the learned Judges were of the opinion that the offer made to the respondent' after the Establishment of West Pakistan as to whether he would stick to the post having been accepted by the respondent a fresh agreement came into existence between the parties which the Government could not now repudiate and therefore the power conferred by proviso (b) to subsection (3) of section 8 could not be exercised. The learned Judges granted a mandamus directing the Government to withdraw the order of 23rd May 1958, and not to transfer the petitioner from the post of Medical Superintendent, Mental, Hospital, Lahore. A certificate was, however, granted by the High Court for an appeal to this Court.

It has been urged by the appellant in the first place that the respondent was appointed not to a specific post, but in P. H. S. Class I and in the second place that section 8 of the Establishment of West Pakistan Act empowers the Government to transfer the respondent to any post in West Pakistan.

That the respondent was appointed in P. H. S. Class I there can be little doubt. The post to which he was appointed is a post in the cadre of P. H. S. Class I as already stated: The contention on behalf of the respondent was that the mention of P. H. S. Class I in the order of his appointment was intended only for the purpose of fixing his grade. This argument would A have merited consideration if the post had not been in the cadre, but if the post be in the cadre then the position that the respondent was appointed in P. H. S. Class I becomes incon trovertible. However, the mere fact that the respondent was appointed in P. H. S. Class I does not end the matter. A person may be appointed to a specialists post within a particular cadre but the fact that he is appointed in that cadre will not' involve that he can be transferred to any other post. This is conceded in the first place in the letter of the Government which .is reproduced below:‑

"With 'reference to your letter No. 2026/E. I., dated the 11^th June 1956, on the subject noted above. I am directed to state that the position has been examined legally and it is found that the transfer of each officer from one institution to another will be governed by the terms and condition on which the post held by him was advertised, irrespective of the fact whether the post is temporary or permanent (or) the officer has been confirmed or not. In view of this legal position, the discretion of Government is very much fettered and the Professors and other Specialists recruited for particular institutions cannot be shifted to institutions other than those for which they were actually recruited, without their consent. In order to obviate any difficult administrative problems likely to be caused by this position, it may be worthwhile to enquire from all such Professors and Specialists whether they would or would not like to be borne on the Provincial. list intended for West Pakistan as a whole, so as to be considered for promotions and transfers according to their seniority on the said list pari passu with their colleagues. You are, therefore, requested to make the necessary inquiry and replies when received may be forwarded to Government along with your remarks. The Professors and other Specialists should be informed in unequivocal terms that in case they want to stick to the College or the institution for which they were originally recruited, their claims for higher posts cannot be considered by Government pari passu with their colleagues serving in other institutions and borne on the West Pakistan Provincial List".

In the second place it was accepted in the letter from the Director of Health Services to the respondent dated the 1st of August 1956, which was written in consequence of, the order of the Government dated the 30th July 1956. This letter is in the following words:‑

"Would you kindly let this Directorate know within seven days of the receipt of this circular memorandum if you would like to be borne on the Provincial list for the purpose of promotions and transfers according to your seniority throughout the West Pakistan Province and thereby you will be liable to transfer in any institution of this Province.

You should therefore give consent in unequivocal terms whether .you want to stick to the place of your present posting foregoing right of promotions, or you would have no objection to serve in any institution of West Pakistan Province in order to avail of the benefit of promotion, etc.

Following is the first reply of the respondent to this letter:‑

"Reference your Memorandum No. 2477‑2600/E. I., dated 1st August 1956.

I am to state that I want to stick to the place of my present posting and forego my rights of promotion outside Lahore."

This reply purports to have been sent on the 15th August 1956, but apparently it had not reached the office of the Director, Health Services, by the 28th August 1956, because on that date the following second letter had been sent to the respondent:‑

"Reference this Directorate Memorandum No. 2477‑2600/E. I;, dated the 1st August 1956, on the subject indicated above.

Your consent on the above subject is still awaited which may be expedited without any further delay as the matter is most urgent."

To the second letter the respondent sent the following reply:‑

Reference your Memorandum No. 2863‑2900/E. I., dated 28th August 1956.

I was appointed and recruited to the Staff of King Edward Medical College, Lahore, and prefer to stick to it.

Promotions elsewhere would be decided by me if and when they are offered. This supersedes my letter No. A‑7/5642 dated 15th August 1956."

The third and final concession that the respondent was appointed to a specific post was made before the High Court. The learned Judges of the High Court say in their judgment: "having had to concede that the petition was appointed to a specific post and that without his consent he could not be transferred to any other post in the Province, the learned counsel for the respondents relying on clause (b) of the proviso to subsection (3) of section 8 of the Establishment of West Pakistan Act, 1955, contended that, in spite of ‑ the terms of the petitioner's appointment, he could be made to serve in any post or capacity and at any place in the Province of West Pakistan". There is a clear concession here that it was not possible to transfer the respondent without his consent and reliance is placed only on the legal provision in the Establishment of West Pakistan Act which, according to the appellants, empowered the Government to transfer the respondent "in spite of the terms of his appointment". As already observed there is no contention before us that this statement in the judgment of the High Court was not correct. There is no allegation either in the concise statement or at the bar that this concession had not been made on behalf of the Government and the Director of Health Services. The post of the Medical Superintendent as provided in the Medical Manual is a specialist post. Had these concessions not been made by the Government a question may have arisen as to whether the respondent though he could not be transferred to any post in the Province could not be transferred at least to a post of the same kind which he was holding, that is, he may have been transferred as a Medical Superintendent of some other Mental Hospital. But the respondent could have been appointed to a "specific post" and not simply in the capacity of a specialist who can fill a particular kind of post. The position taken up by the Government was that the respondent was appointed to a "specific post". The Government has nowhere contended that the respondent was liable to be transferred to a post of the same kind. It has to be accepted therefore that the respondent had been appointed to a specific post and the only question which remains for consideration is whether proviso (b) to section 8 (3) of the. Establishment of West Pakistan Act enables the Government to transfer the respondent in spite of the fact that his appointment was only to a specific post: As a matter of fact this question had been considered by this Court in the order passed on the 13th February 1964, wherein we stated "this proviso was certainly expressed in very wide terms, but it was hardly possible to accepts authorising the Government to require a person appointed as a specialist to a specific post to serve in any other post or capacity whatsoever anywhere else in West Pakistan". However, the matter was not finally decided and it is necessary to consider the matter in full. Section 8 (3) of the Establishment of West Pakistan Act runs as below:‑

(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 States Union, shall, as from the appointed day, be deemed to be persons serving the Crown in connection with the affairs of the Province of the 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."

The words "specified territories" as explained in section 2 means "the States of Bahawlpur and Khairpur, and the Baluchistan States Union, the Tribal Areas of Baluchistan, the Punjab and the North‑West Frontier and the States of Amb, Chitral, Dir and Swat." In accordance with section 8 (3) the Government of West Pakistan is entitled to determine the terms and conditions of persons who were serving in connection with the affairs of the specified territories on the appointed day, that is, the day on which provisions of the West Pakistan Establishment Act came into force. There are two provisos to this power of the Governor to redetermine the terms and conditions:

(i) that the conditions cannot be less favourable than those which were applicable before the 10th August 1955, and

(ii) notwithstanding the terms of his appointment in the specified territory any such person may be required to serve in any post or capacity in any part of West Pakistan.

Actually the second proviso is only a proviso to the first proviso which says the terms cannot be less favourable than those applicable before the 10th August 1955. It can obviously not be a proviso to the general power of the Governor under the main provision to redetermine the terms and conditions for a proviso is an exception to the rule and the second proviso does not take away from or qualify the power granted to the Governor.

It should be clear that the proviso (b) with the applicability of which we are concerned applies only to a post which was being held "on the appointed day" and also that it is only the conditions of appointment in the "specified territory" that cannot be a bar to the transfer of a civil servant. This proviso will have no application to an appointment made after the appointed day when the West Pakistan Province had come into existence nor has the proviso any force in doing away with the terms and, conditions which were operative not in the "specified territory" but the Province of West Pakistan.

When we consider the facts of this case we find present each of the two grounds mentioned above which can prevent the application of the proviso. In the first place the post from which it is sought to transfer the respondent is not a post which he was holding on the appointed day. This is a post which came into existence on the 9th of November 1956 for respondent had been appointed "Medical Officer Incharge and Associate Professor of Psychiatry of the Mental Hospital" on 7th April 1955. This post as already stated was abolished on the 9th of November 1956, and two new posts were created, that is, the post of tie Medical Superintendent and the post of the Deputy Medical Superintendent. Suppose the respondent was not in the service of the Government at all on the appointed day and his appointment had been made only on the 9th of December 1956. It is clear that in that case the proviso under consideration would have no application. The position is not different if the post which the respondent was holding on the appointed day was abolished and a new post was created to which the respondent was appointed. Legally there was a fresh appointment to a new post which was not in existence on the appointed day and the position of the respondent was the same as it would have been if he was not in service on the appointed day. It ma) be clarified here that this was not a case of a mere change of nomenclature for there was a distinct change in the nature of duties which had to be performed. As "Medical Officer Incharge and Associate Professor of Psychiatry" the respondent had no administrative duties. When he was appointed Medical Superintendent he took charge of the Administration of the Mental Hospital as well. At the same time although he was Associate Professor Psychiatry also in his first appointment he became a simple Medical Superintendent in the second appointment without any duties as Associate Professor of Psychiatry. It may be that actually he was also teaching Psychiatry for which some payment was being made to him, but there is no order of his appointment as Associate Professor of Psychiatry nor is there, any order of the Government or anything in the Medical Manual to the effect that teaching Psychiatry in the King Edward Medical College is a part of the duties of the Medical Superintendent, Mental Hospital. It seem clear therefore that as a holder of a post which came into existence after the appointed day the respondent is not affected by the proviso under consideration.

The second reason for the proviso being inapplicable is that it says: "notwithstanding the terms of his appointment in the specified territory". So it is only the terms of appointment in the specified territory that will not stand in the way of respondent being transferred. The proviso does not say "notwithstanding the terms of his appointment in West Pakistan". If the respondent was pleading that the terms of his appointment in the specified territory prevented his transfer the proviso would be applicable. If on the other hand his contention be that the terms of his appointment to a post in West Pakistan after the appointed day stand in the way of his transfer the proviso is not attracted. The terms of his appointment on which the respondent now relies and can rely are the terms of his appointment of the 9th December 1956, when he .was appointed a Medical Superintendent. The respondent contends that these terms do not permit his transfer. It is this appointment whose incidents we are now considering. We are not concerned at all now with the terms of his appointment as Medical Officer Incharge and Associate Professor of Psychiatry. For this reason too therefore the proviso is, inapplicable.

While I have given my own reasons for rejecting the applicability of provisos I am not saying that the reason given by the High Court was not sound. Even if the Government had power of transfer it could waive that power. The effect is the same whether we regard the act of the Government as a simple act of waiver or a redetermination of condition under section 8 (3) of the Establishment of West Pakistan Act. If the Government redetermines conditions and includes in those conditions that a person is appointed to a specific post he will not be liable to be transferred for henceforth it is those conditions which would be applicable and the proviso will not avail to the Government for transferring the civil servant. Apart from this consideration even if it be a simple case of waiver there is no bar to the Government waiving its right of transfer.

There was a waiver in the letter of the Government as well as in the letter of the Director of Health Services. In the first reply sent by the respondent he clearly accepted his position to be that of a person who cannot be transferred. In the second too he said that he would stick to his appointment in the King Edward Medical College. He only‑ added that he would consider the question of promotion when it was offered. That does not mean that he accepted his liability to be transferred. Even to a civil servant not liable to be transferred a promotion may be offered and he may accept it thereby renouncing his previous rights, but till he accepts the promotion he retains the previous rights.

I would dismiss this appeal with costs.

S. A. RAHMAN,

J.‑I agree.

FAZLE AKBAR, J.‑‑‑I

agree.

HAMOODUR RAHMAN, J.‑I

agree.

CORNELIUS, C. J.‑

I

agree with the order proposed in this case by my learned brother Kaikaus, J.

It is not open to Dr. A. A. Aziz to deny that he is a member of the Class 1, Health Service, but that fact by itself does not render him liable to suffer appointment to any post which is open to members of that Service. It is clear that he was originally appointed in 1955 to a specialist post included among the posts reserved for members of that Service, as it existed prior to the integration of West Pakistan, in the Province of Punjab. This was a post relating mainly to the Punjab Mental Hospital at Lahore, in the capacity of Medical Officer‑in‑charge, and was specialised further by its carrying also the duties of Associate Professor of Psychiatry, in the King Edward Medical College at Lahore. The post was of an isolated character, being the only one of its kind in the then Province of the Punjab. When the West Pakistan Province was formed, other Mental Hospitals came within the purview of the new Province, namely, that at Peshawar, where Dr. A. A. Aziz had worked before he accepted appointment to the Punjab Mental Hospital, and that at Hyderabad, to which he was transferred by order in May 1958. He refused to obey that order, taking his stand on the claim that he could not be legally transferred away from the Mental Hospital at Lahore. He challenged the order by means of a writ' petition in the High Court where he succeeded in obtaining a direction to the Government of West Pakistan to withdraw the order and not to appoint him to any post other than that of Medical Superintendent of the Punjab Mental Hospital at Lahore.

The Provincial Government relied on proviso (b) to section 8(3) of the Establishment of West Pakistan Act, 1955, in support of the order of transfer. This subsection had the effect of converting all Government servants in the different Provinces which were being integrated, into servants of the new Province, and by the effect of the proviso, all pre‑existing restrictions as to the places or posts to which, as a servant of a Province which had ceased, to exist, any such servant was either subject or was entitled, were swept away. The conditions of such a person's appointment in any of the merged Provinces were declared not to stand in the way of the exercise by the new Provincial Government of the power to require him to serve "in any post or capacity or in any part of West Pakistan." The terms in which the power is expressed are very wide, but they clearly cannot be used for the purpose, say, of requiring a member of the General Administrative Service to work in the veterinary department, or anything equally absurd. The expression "post or capacity" must be understood in relation to the "notwithstanding" clause, i.e., in relation to the terms of the servant's appointment in the merged Province. In the case of Dr. A. A. Aziz, this restriction was undoubtedly observed, namely, that being a specialist in psychiatry, and a Medical Officer of the Mental Hospital at Lahore, he was being required to serve in a similar capacity at another place in the new Province, namely, Hyderabad, and this would be within the authority of the Provincial Government, subject however to any special conditions applicable in respect of the officer concerned.

My learned brother has referred to the action taken by the Provincial Government in 1956, following after the integration, in respect of "the professors and other specialists recruited for particular institutions," and has found that the post which I)r. A. A. Aziz claims that he is entitled to hold is one which was given to him on the 9th November 1956, and was different in character from that which he was holding on the date of the ; merger of the Provinces. Proviso (b) to section 8(3) of the Act ‑in question has the effect of excluding the operation of "the terms of his appointment in the specified territory." that is to say in the Punjab only, and I agree with my learned brother that it is not that term which Dr. A. A. Aziz is seeking to enforce. If however, the case be that his appointment on the 8th November 1956, in the capacity of Medical Superintendent of the Mental Hospital at Lahore should be treated as one which is outside the scope of proviso (b) to section 8(3) aforesaid, he would nevertheless remain subject to the general power of the Provincial Government to make use of his services in any post within the West Pakistan Province of the character which he was occupying, unless there were in existence a legal restraint upon the exercise of that power. My learned brother has found that by the Provincial Government's letter of the 30th July 1956, to the Director of Health Services and the succeeding correspondence which ended with a firm declaration of choice by Dr. A. A. Aziz to stick to his present posting and, in consideration, to forego his rights of promotion outside Lahore (vide his letters of the 15th August and the 4th September 1956), the effect is produced that the Provincial Government waived its power under section 8 (3), proviso (b) above, to appoint Dr. A. A. Aziz to any post in the Province of their choice, or in the alternative that it amounted to re‑determination of conditions in his case.

I would prefer to look at the matter in a slightly different light, that is to say, rather as one falling within the regulation of an established service, than as a case of a special contract. The letter of the 30th July 1956, is clearly general in its scope, and relates to all "professors and other specialists recruited for particular institutions." It states that the Government had been given legal advice to the effect that if an officer were appointed to a particular institution, his appointment would be "governed by the terms and conditions on which the post held by him was advertised." The Government accepted this legal advice and came to the conclusion that its discretion was "very much fettered" so that these "professors and other specialists recruited for particular institutions cannot be shifted to institutions other than those for which they were actually recruited without their consent." Whether or not the legal advice which the Government received was accurate, the fact that remains that it was adopted, and in order conceivably to minimise the number of such persons, and thus to free the hands of the Government in regard to their postings to the maximum possible extent, the administrative device was adopted of requiring the Director of Health Services to make enquiry from each such official "whether they would or would not like to be borne on the Provincial list intended for West Pakistan as a whole, so as to be considered for promotions and transfers according to their seniority." It was desired that they should be "informed in unequivocal, terms that in case they want to stick to the College or the institution for which they were originally recruited, their claims for higher posts cannot be considered by Government pari passu with their colleagues serving in other institutions and borne on the West Pakistan Provincial List". In compliance with this direction, a reference was made to Dr. A. A. Aziz, and as already stated, he replied in unequivocal terms that he preferred "to stick to the place of my present posting." This he said in his letter of the 15th August 1956, and he repeated it in his letter of the 4th September 1956. His saying in the latter that he would decide about promotions "if and when they are offered" clearly excludes reservation of any claim of right to promotions within the Service in the ordinary way.

In my view, the effect of the letter of the 30th July 1956, which related to all professors and other specialists recruited for' particular institutions" coupled with the action taken thereunder is no less binding upon the Government than if these matters had E been incorporated in the Rules of the particular Service. The absence of formal embodiment in the shape of a rule and publication in the Government Gazette does not operate to render these instructions any the less obligatory upon the Government. In somewhat similar circumstances it was held in the case, Pakistan v. Sheikh Abdul Hamid (1)PLD1961SC105, that certain instructions of general application, expressed in the form of an Office Memo randum, being final instructions intended to regulate the absorption into the Ministerial Establishment of a great number of persons, were of binding effect as against the Government notwithstanding that the Office Memorandum had not been incorporated into the Ministerial Establishment Rules.

The right which Dr. A. A. Aziz claims under these instruc tions is one which he has had to forego certain other rights in order to secure for himself. Those instructions were applicable to a considerable number of other persons besides Dr. A. A. Aziz, and were sufficiently general, and in their expression sufficiently specific, to have the effect of binding the Government in regard to the exercise of its powers of appointment of the officers concerned, within the Service to which they belonged. The appeal should accordingly be dismissed, with costs to Dr. A. A. Aziz.

A. H. Appeal dismissed.

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